State v. Banks

• Citation: 59 Conn. App. 112,755 A.2d 951
• Court: Appellate Court of Connecticut
• Decision Date: 01 August 2000
• Parties: (Conn.App. 2000) STATE OF CONNECTICUT V. MARK BANKS (AC 19505)

755 A.2d 951 (Conn.App. 2000)

STATE OF CONNECTICUT

V.

MARK BANKS

(AC 19505)

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued April 5, 2000

August 1, 2000

Susan M. Hankins, assistant public defender, with whom, on the brief, was Steven Yudkin, certified legal intern, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Kevin J. Murphy, assistant state's attorney, for the appellee (state).

Hennessy, Mihalakos and Zarella, Js.

Hennessy, J.

OPINION

The defendant, Mark Banks, appeals from the judgments of the trial court, rendered after a jury trial, of four counts of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4), four counts of kidnapping in the first degree in violation of General Statutes §§ 53a-92 and two counts of criminal possession of a pistol or revolver in violation of General Statutes §§ 53a-217c. The defendant claims that the court improperly (1) failed to suppress in-court and out-of-court identifications of him that were obtained as the result of impermissibly suggestive procedures and were not reliable under the totality of the circumstances, (2) consolidated for trial three factually similar but legally unconnected informations, refused to instruct the jury that the state was not prosecuting one of the three cases against him that the jury had been told it would hear and refused to allow defense counsel to "make any reference to the fact that prior to the voir dire there was a third case," (3) determined that there was sufficient evidence to sustain his conviction for criminal possession of a pistol or revolver when the state had failed to prove the allegedly essential element of operability and failed to instruct the jury that operability was an essential element that the state was required to prove and (4) failed to instruct the jury that it should give no greater or lesser weight to the testimony of police officers on account of their occupational status and charged the jury regarding expert testimony when police officers were the only witnesses to whom the instruction could apply. We affirm the judgments of the trial court.

The following procedural facts are necessary for a resolution of this appeal. The defendant was charged in connection with three robberies in three separate informations, which the court, on the state's motion, joined for trial. Following a pretrial hearing, the state nolled and the court dismissed one information because the victim had told the prosecutor that the defendant was not the perpetrator.¹ Prior to trial, the defendant objected to the consolidation and, on the day evidence began, orally renewed his motion to sever the two remaining cases on the ground that although they were factually similar, they were legally unconnected. The court denied the motion and adopted its prior conclusion² that the cases properly were joined.³ Thus, the remaining two cases remained joined for trial.

The jury reasonably could have found the following facts with respect to an August 30, 1995 robbery alleged in one of the two informations on which the state proceeded at trial. Michael Kozlowski and Howard Silk were working that evening at the Bedding Barn store in Newington. The defendant, posing as a customer, entered the store shortly before closing at 9 p.m.; there were no other customers in the store. Kozlowski approached the defendant and began to show him some king-size beds. The defendant pulled a large silver gun from a bag he was holding. The gun had a round cylinder. The defendant, while pointing the gun at Silk, ordered Kozlowski to open the cash register. After taking money from the register, the defendant requested the store's bank bag or safe. The defendant then asked Silk and Kozlowski for the money from their wallets. He then took money from Silk, but not from Kozlowski. Silk and Kozlowski were then locked in the bathroom with something propped against the door and told not to leave or they would be shot. A short time later, when Silk and Kozlowski heard the doorbell in the store ring, they assumed the robber had left, pushed open the bathroom door and called the police.

The jury reasonably could have found the following facts with respect to a September 13, 1995 robbery alleged in the second of the two informations on which the state proceeded at trial. Kelly Wright was working that evening at the Bedding Barn store in Southington. Shortly before 9 p.m., while Wright's roommate, Idelle Feltman, was waiting to take her home, the defendant and an unknown woman, posing as customers, entered the store. The defendant pulled a gun from a bag he was carrying, held it to Feltman's temple, and asked her to open the cash register and to give him money. The defendant then requested the bank bag, which Feltman gave him. The defendant then told Wright and Feltman to get into the bathroom and lock themselves in. Shortly thereafter, Feltman and Wright heard the door buzzer and surmised that the defendant had left the store. They exited the bathroom and called the police. Other facts will be discussed where they are relevant to the issues in this appeal.

I.

The defendant claims first that the court improperly failed to suppress in-court and out-of-court identifications of him that were obtained as the result of impermissibly suggestive procedures and were not reliable under the totality of the circumstances. The defendant claims that the denial of his motions to suppress the identifications resulted in the denial of his constitutional rights to due process and a fair trial in violation of the fifth, sixth and fourteenth amendments to the United States constitution, and article first, §§ 8, of the constitution of Connecticut. We disagree.

The following additional facts are necessary for our resolution of this claim. During the hearing on the defendant's motions to suppress, Feltman, Wright and Detective Craig Fournier of the Southington police department testified as to the September 13, 1995 robbery. Feltman testified that she was able to observe the defendant for about five or six minutes during the robbery and that the robber held the gun to her temple. Feltman testified that she described the robber to the police as wearing a red shirt, thinly built, about six feet tall and weighing about 200 pounds, and without facial hair. Feltman testified that approximately four months later, when she picked the defendant's photograph out of a police photographic array, she noted to Fournier that unlike in the photograph, the robber's hair was shorter and he did not have facial hair. Feltman also testified that the eyes and ears of the defendant were very vivid, and that when she observed the defendant's photograph she "turned very sweaty." She further testified that when she saw the defendant's photograph, "My stomach started bothering me, and I looked closer into the eyes, and that's what I saw that night."

Wright testified that she observed the robber for approximately five or six minutes during the robbery. She testified that she described the robber to the police as a black male, tall, approximately 200 pounds, in his late twenties or early thirties. She also had looked at a police photographic array and testified that "when [she] saw the eyes in that photograph, it brought flashbacks back." She testified that she told Fournier that "[t]his looks like the gentleman that robbed me." She further testified that the robber did not have any facial hair and that the hair in the police photograph she had looked at was different.

Fournier testified as follows regarding the procedure for showing Feltman and Wright the photographic lineup: "I advised them that they would have to view the lineup separately. I couldn't show it to them at the same time. I had one of them step around the corner. I don't recall who I showed it to first, but the other one stepped around the corner out of view. I explained to both women that the suspect who had done the robbery may or may not be in this photographic lineup and to view the photos carefully, and if they see the person who did the robbery to indicate which one he is."

"To determine whether a pretrial identification procedure, such as the photographic array in this case, violated a defendant's due process rights, the 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.... An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification.... The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable." (Citations omitted; internal quotation marks omitted.) State v. Collins, 38 Conn. App. 247, 261-62, 661 A.2d 612 (1995).

In this case, the defendant claims that the photographic array was unnecessarily suggestive because it was not based on the various descriptions that the witnesses to each of the three robberies gave to the police on the nights of those robberies, i.e., that the robber was clean-shaven with no facial hair. The defendant further claims that the array was unnecessarily suggestive because it was not based on two composites prepared by the police, but instead was based on the physical description of the defendant.

The defendant makes much of the fact that the array contained only photographs of men with facial hair, a physical characteristic that does not conform to the description of a clean-shaven robber that was given by the witnesses. We fail to see how this could be unnecessarily suggestive. First, the witnesses all were able to pick...