State v. Askew

• Decision Date: 21 September 1999
• Docket Number: (AC 17799)
• Citation: 55 Conn. App. 34,739 A.2d 274
• Parties: STATE OF CONNECTICUT v. WILLIAM ASKEW
• Court: Connecticut Court of Appeals

55 Conn. App. 34

739 A.2d 274

STATE OF CONNECTICUT v. WILLIAM ASKEW

(AC 17799)

Appellate Court of Connecticut.

Argued April 27, 1999.

Officially released September 21, 1999.

Foti, Hennessy and Sullivan, Js. Michelle M. Napoli, special public defender, for the appellant (defendant).

Robert M. Spector, deputy assistant state's attorney, with whom, on the brief, were John Connelly, state's attorney, and Terence Mariani, deputy assistant state's attorney, for the appellee (state).

Opinion

SULLIVAN, J.

The defendant, William Askew, appeals from a judgment of conviction, rendered after a jury trial, of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4).¹ The defendant claims that (1) the out-of-court identification procedures employed by the state denied him his due process rights and (2) there was insufficient evidence to sustain the defendant's convictions on all crimes charged beyond a reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 1 a.m. on October 29, 1996, David Rodriguez and Jose Rodriguez were sitting in a car parked in front of 253 Dorchester Avenue in Waterbury when a black Mazda pickup truck with one working headlight pulled up along the driver's side of their car and stopped approximately three feet away. The passenger of the truck, the defendant, exited the truck and approached the driver's side of the car. A brief conversation ensued between David Rodriguez and the defendant. Soon thereafter, the defendant pulled out a gun and demanded money from the Rodriguezes. When they told the defendant that they had no money, the defendant made them get out of the car and lie between their car and the pickup truck. The defendant and the driver of the truck, Tracy Jones, searched the Rodriguezes and the interior of their car. They took $20 and a black coat from Jose Rodriguez and an electronic telephone book from David Rodriguez. A gun was also removed from the car. The defendant and Jones got back in the truck and drove off.

Between ten and twenty minutes after the incident, David Rodriguez flagged down Officer Daniel Caruso of the Waterbury police department, who was driving along Dorchester Avenue. He told Caruso what had happened and described the defendant, Jones and the truck that they were driving. Approximately ten to fifteen minutes later, a black Mazda pickup truck with one working headlight was spotted on Mitchell Avenue by Officer Daniel Mancini of the Waterbury police department. As Mancini approached the truck, it sped away. A high speed chase ensued, ending when the truck crashed into a parked car on Ives Street. Both occupants of the truck fled. The defendant was soon captured by Michael O'Loughlin, a Waterbury police officer, and was wearing the black coat that was stolen from Jose Rodriguez. The driver of the truck was captured approximately one hour later. A search of the defendant failed to discover either the stolen gun or the electronic telephone book.

After hearing a report that one of the suspects had been captured, Mancini took both Rodriguezes to Ives Street to identify the suspect. When they arrived, the defendant was sitting in a police transport vehicle wearing the stolen coat. David Rodriguez identified the defendant as the person who had robbed him. He also identified the black Mazda pickup truck as the same vehicle that pulled up next to his car just prior to the robbery. Immediately after the show-up identification, David Rodriguez was taken to the police station where he was shown a photograph of the defendant. As the police showed him the photograph, one of the officers said, "That's the guy right?" David Rodriguez responded in the affirmative.

On August 8, 1997, the jury convicted the defendant of two counts of robbery in the first degree. This appeal followed.

I

The defendant first claims that the pretrial identification procedures employed by the state violated his state and federal due process rights to a fair trial because they were unnecessarily suggestive and unreliable. We disagree.

Because the defendant did not raise this claim before the trial court, we must determine whether the defendant can prevail under the four-prong test articulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).² See State v. Daniels, 248 Conn. 64, 79, 726 A.2d 520 (1999) (en banc). While the first two prongs of the Golding analysis consider whether the defendant's claim is reviewable, the last two prongs address the merits of the claim. Id.; State v. Beltran, 246 Conn. 268, 275, 717 A.2d 168 (1998). "In the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." State v. Golding, supra, 240.

We conclude that the defendant's claim fails the third prong of Golding analysis because the identification procedures employed by the state did not deprive the defendant of a fair trial. "In determining whether identification procedures violate a defendant's due process rights, [t]he required inquiry is made on an ad hoc basis and is two-pronged: first, 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 an examination of the totality of the circumstances.... To prevail in his claim, the defendant must demonstrate that the trial court erred in both of its determinations regarding suggestiveness and reliability of identifications in the totality of the circumstances." (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 246, 710 A.2d 732 (1998); State v. Taylor, 239 Conn. 481, 498-99, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).

"[R]eliability is the linchpin in determining the admissibility of identification testimony...." (Internal quotation marks omitted.) State v. Wooten, 227 Conn. 677, 687, 631 A.2d 271 (1993). To determine whether an unnecessarily suggestive procedure results in an identification that is nonetheless reliable, we must "weigh the corrupting effect of the suggestive procedure in light of certain factors such as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of [that person's] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." (Internal quotation marks omitted.) Id., 687-88.

In the present case, David Rodriguez had ample opportunity to view the defendant during the incident. He testified that he had a brief conversation with the defendant in which he had an unobstructed view of the defendant's face from very close range.³ Shortly after the incident, he provided an accurate description of the defendant to the police before any identification procedure ever took place.⁴ When taken to Ives Street to identify the defendant, he did not hesitate to identify both the defendant and the truck involved in the robbery. Furthermore, only about thirty minutes had passed between his viewing of the defendant and the show-up identification. We have upheld the reliability of other possibly unnecessarily suggestive identification procedures when more than thirty minutes passed between the viewing of the defendant and the show-up identification. See State v. Gettes, 42 Conn. App. 472, 478, 680 A.2d 996, cert. denied, 239 Conn. 921, 682 A.2d 1009 (1996) (fifteen days); State v. Sims, 12 Conn. App. 239, 242, 530 A.2d 1069, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987) (thirty-five minutes). While the identification procedures used by the police may have been unnecessarily suggestive, the identification was nonetheless reliable.⁵

After our review of the record, we conclude that the identification was reliable under the totality of the circumstances and, thus, the defendant's due process rights were not violated. Because the defendant was not deprived of a fair trial, the third prong of Golding has not been satisfied.

II

The defendant next claims that the trial court improperly denied the defendant's motion for judgment of acquittal because there was insufficient evidence to sustain his conviction of two counts of robbery in the first degree in violation of § 53a-134 (a) (4). We disagree.

"When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict.... Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Rogers, 50 Conn. App. 467, 473, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998); State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). "[W]e give deference not to the hypothesis of innocence posed by the defendant, but to the evidence and the reasonable inferences drawable therefrom that support the jury's determination of guilt." State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994). While there were disputed facts presented at...