State v. Brown

• Court: Connecticut Court of Appeals
• Writing for the Court: BISHOP, J.
• Citation: State v. Brown, 161 Conn.App. 483, 128 A.3d 553 (Conn. App. 2015)
• Decision Date: 24 November 2015
• Docket Number: No. 37646.,37646.
• Parties: STATE of Connecticut v. Christopher Anthony BROWN.

161 Conn.App. 483

128 A.3d 553

STATE of Connecticut

v.Christopher Anthony BROWN.

No. 37646.

Appellate Court of Connecticut.

Argued Sept. 22, 2015.

Decided Nov. 24, 2015.

S. Max Simmons, assigned counsel, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robin D. Krawczyk, senior assistant state's attorney, for the appellee (state).

LAVINE, PRESCOTT and BISHOP, Js.

BISHOP, J.

The defendant, Christopher Anthony Brown, appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the second degree in violation of General Statutes § 53a–94 (a), and conspiracy to commit kidnapping in the second degree in violation of General Statutes §§ 53a–48 (a) and 53a–94 (a). On appeal, the defendant claims that the trial court improperly denied his motion to compel the state to disclose the identity of a confidential informant.¹ We affirm the judgment of the trial court.

At trial, the jury reasonably could have found the following facts. In the early morning of August 4, 2012, the defendant, Christopher Anthony Brown, and two associates abducted the victim, Neville Bar, and brought him to an abandoned building located at 27 Glendale Avenue in Hartford. The defendant and his two associates brought the victim to the basement of 27 Glendale Avenue, tied his wrists and ankles with rope, and threatened him at gunpoint, demanding to know where he kept his supply of marijuana and cash. During the incident, the defendant and his associates stabbed the victim in the leg, hit him in the face with a gun several times, and tortured him by melting a plastic water bottle onto his arms. Before leaving the abandoned basement, the three men took the victim's wallet, which contained $700, tied him with a blanket and a string of Christmas lights, and left him in a bathtub.

On the morning of August 5, 2012, Hartford police officers found the victim in the basement of 27 Glendale Avenue after a neighbor heard him screaming for help. When discovered, the victim was standing in the bathtub, covered in feces and urine, and bound by rope, the string of Christmas lights, and the blanket. He was confused and could only provide disjointed answers to police questioning about the incident and the identity of his assailants. He was then sent to Hartford Hospital for treatment of his wounds and dehydration.

Later that day, Hartford police Detective Richard Salkeld visited the victim at the hospital at which time the victim informed Salkeld that the three assailants were black Jamaican men, one of whom had a "milky-white" left eye.

Following his conversation with the victim, Salkeld spoke to the victim's wife, Margaret Bar, and his niece, Karina Reed. Reed informed Salkeld that she knew a Jamaican male who had recently been evicted from 27 Glendale Avenue, but still used that location as a place to party. She identified the Jamaican male as "Banit" and described him as having only "one eye."

On the basis of the descriptions provided by the victim and Reed, Salkeld searched the Hartford Police database for black Jamaican men associated with 27 Glendale Avenue. That search revealed that the defendant had recently been a resident of 27 Glendale Avenue. A physical description of the defendant in the police booking system indicated that one of the defendant's eyes was "whited over."

In the morning of August 6, 2012, Hartford police Detective Renee LeMark–Muir received information from a registered confidential informant² who, in the past, had provided the police with credible and reliable information that had led to the identification and location of suspects. The confidential informant told LeMark–Muir that on August 5, 2012, Reed had contacted the informant, asked whether the informant had information regarding the abduction of the victim, and asked whether a Jamaican male known as "Banit" had been involved. The informant told the detective that the informant had then spoken to the defendant, whom the informant knew by his street name "Banit." The informant stated that the defendant had confessed to kidnapping, tying up, beating, and melting a plastic bottle on the victim. The informant also stated that the defendant did not believe that the victim would identify him or his two associates because the victim was afraid of them.

On the basis of the results of the police database search, the descriptions of the assailants from the victim and Reed, and the information from the confidential informant, Hartford police Detective David Ritcher prepared a photographic array consisting of eight photographs, one photograph of the defendant and seven of black men of similar age, appearance, and dress. To further make uniform the appearance of the individuals and eliminate the distinct characteristic of the defendant's eye, Ritcher blacked out the left eye of each individual in the photographic array.

At approximately noon, on August 6, 2012, Ritcher and Salkeld visited the victim in the hospital. They administered the standard witness identification instructions and also gave the victim a form containing the same instructions. The victim initialed each instruction and signed the form, indicating that he understood each instruction. The detectives then presented the photographic array to the victim, who selected the photograph of the defendant, whom he knew as "Banit." He then provided the police with a signed voluntary statement stating "this is the guy who robbed me and kidnapped me."

The defendant was subsequently arrested pursuant to a warrant and charged in a five count long form information with: kidnapping in the second degree in violation of § 53a–94 (a) ; assault in the second degree in violation of General Statutes § 53a–60 (a)(2) ; robbery in the first degree in violation of General Statutes § 53a–134 (a)(4) ; conspiracy to commit kidnapping in the second degree in violation of §§ 53a–48 (a) and 53a–94 (a) ; and conspiracy to commit assault in the second degree in violation of §§ 53a–48 (a) and 53a–60 (a)(2).

Prior to trial, the defendant moved to compel the disclosure of the confidential informant's identity. In support of his motion for disclosure, the defendant claimed that he had a right to contact and to interview the confidential informant to discover whether the informant was credible and if the informant possessed information helpful to his case. The defendant also expressed suspicion that the confidential informant, police, and victim had fabricated the identification of him in the photographic array. In that regard, the defendant argued, through counsel, that while the victim had been unable to identify his assailants when police rescued him from the basement of 27 Glendale Avenue, "all of a sudden, it looks like [the informant] came along and said whatever [the informant] said and then all of a sudden the [identification] was made." Defense counsel further stated that "we have to jump to the spot where we assume that the police are telling the truth. I hope—we have to assume the police are telling the truth. I hope that they are, they probably are, but I have a shot, I think, to determine whether or not there's any issue with respect to these people in their credibility."

The defendant offered, as an additional reason for his request, his desire to investigate whether the informant possessed any information that was relevant to his defense. Defense counsel stated to the court that "I can't tell if [the informants] were eye witnesses or not. [The state] says they were not, but I read them and I wasn't sure .... I don't know, they might be helpful to me. I think I have a right to at least try to talk to them, with any limitations that the court wants to impose, I'm happy to do that, but all this is rumor, upon rumor, upon rumor and it's just hard and it's not fair." Defense counsel concluded by requesting that the court "order the names of the [informants] to be turned over to me so that I can contact them and determine if they can be helpful to the case."

The state objected to the disclosure, arguing that the confidential informant was credible because that person was registered with the Hartford police and had provided reliable and credible information to the police in the past. The state argued, as well, that the informant had no independent information regarding the crime and had only aided the police in the identification of a suspect whom the victim subsequently and independently picked out of a photographic array. Finally, the state argued that the informant likely would be killed if the informant's identity was disclosed. In that regard, the state asserted that although the defendant had confessed details of the crime to the confidential informant, the state said that it would not be calling the informant as a witness at trial in order to protect the informant's identity.

In denying the defendant's motion for disclosure, the court stated: "[A]s far as the discovery is concerned, there's a purpose to withholding the identity of informants, a public interest purpose, with law enforcement in its course, discretion, and duty to balance and the preservation of the underlying purpose of the privilege with the fundamental requirements of fairness. That's under State v. Jackson, [239 Conn. 629, 632–33, 687 A.2d 485 (1997).] ...

"Some of the questions that arise [are] whether or not the information was given in confidence that it would not be disclosed. If that was essential to maintaining the relationship between the parties and the police, then it fosters a good community purpose as far as confidential informants are concerned, and if the disclosure would be harmful to that purpose. Now, if the informant was a witness to or a participant in a crime, it would be required that the[ir] be—the identity be disclosed ....

"Now, the defense in this particular motion has the burden to establish, beyond mere speculation, that the information would assist...