State v. Campfield

Decision Date31 December 1996
Docket NumberNo. 11386,11386
Citation44 Conn.App. 6,687 A.2d 903
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Benjamin CAMPFIELD.

Erskine D. McIntosh, New Haven, for appellant defendant.

James M. Ralls, Assistant State's Attorney, with whom, on the brief, were Donald Browne, State's Attorney, and Cornelius Kelly, Assistant State's Attorney, for appellee State.

Before LANDAU, HEIMAN and DALY, JJ.

DALY, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of two counts of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a) and two counts of attempted assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a). 1 The defendant claims that (1) certain prearrest and trial identification procedures violated his right to due process, (2) the warrantless search of his automobile violated his right to be free from unreasonable searches, (3) the admission into evidence of his refusal to submit to a gun powder residue test violated his rights to counsel, to due process and against self-incrimination, (4) the trial court improperly instructed the jury that one can simultaneously possess the intent to cause death and the intent to cause serious physical injury, (5) the judgments of conviction of attempted murder and attempted assault in the first degree violated the guarantee against double jeopardy, (6) the jury verdicts were not supported by sufficient evidence, and (7) the trial court improperly denied his request to instruct the jury regarding the definition of "planned" as it is used in § 53a-49. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. At approximately midnight on April 10, 1991, Trumbull police officer Kevin Hammel saw a dark colored BMW with Georgia license plates turn onto Main Street and proceed north. The automobile rapidly accelerated and Hammel, traveling behind it, tracked its speed with the radar in the police vehicle. Before Hammel could activate his overhead lights or siren, the driver of the BMW pulled over and stopped. As Hammel approached the BMW, he noted that it appeared to be brown or dark in color. Hammel asked the driver for his operator's license, registration and insurance identification card. Because the driver did not have his license in his possession, Hammel wrote the driver's date of birth on the insurance card and radioed police headquarters and ascertained that the driver had a valid Connecticut operator's license. Hammel gave the driver an oral warning and released him.

Shortly after midnight, Ivan Mikolic was driving with a passenger, Tracey O'Connor, in his automobile on Stonehouse Drive in Trumbull. Mikolic and O'Connor noticed that an automobile with four round headlights was closely following them and occasionally flashing its high beams. Mikolic recognized the automobile as a BMW. Mikolic turned into a driveway to allow the BMW to pass. After passing Mikolic's vehicle, the BMW made a U-turn toward Mikolic's vehicle and stopped, while Mikolic pulled back out of the driveway to proceed in the direction he and O'Connor had been driving. Thinking that the driver of the BMW needed help, Mikolic drove to within a short distance of it and parked at an angle so that his headlights illuminated both the automobile and its driver. The defendant was the driver of the BMW, which was dark in color and appeared to be brown. After several seconds, the defendant pointed a gun and fired five shots at Mikolic and O'Connor. Bullets entered the hood, the left front tire, mud flap, fender and driver's side door, and shattered the driver's side window. Mikolic and O'Connor ducked and drove away, and the defendant drove away in the opposite direction. Mikolic and O'Connor abandoned Mikolic's vehicle because of the flat left front tire. They ran to O'Connor's house and called the police.

Hammel and other police officers subsequently arrived at O'Connor's house and spoke with Mikolic and O'Connor. Hammel noted the similarities between Mikolic's description of the driver and the automobile involved in the shooting and the driver and BMW he had stopped earlier that evening on Main Street in Trumbull. On the basis of those similar descriptions, the Trumbull police staked out the defendant's house about a quarter mile from the shooting incident and notified the surrounding towns' police departments about the incident so that they could assist in locating the defendant. A short time later, at approximately 2 a.m., the defendant and his automobile were found by the Bridgeport police at the intersection of Hollister and Stratford Avenues. Hammel went to the scene and identified the defendant as the driver he had stopped earlier. He then removed the insurance identification card from the glove compartment, saw the driver's date of birth that he had written on the card at the earlier traffic stop and noticed that the car appeared to be blue.

Officer Susan Hamilton of the Trumbull police department drove Mikolic and O'Connor to Bridgeport to view the defendant. As they approached the location where the police were holding the defendant, Mikolic and O'Connor recognized the defendant's car, although it now appeared to them to be blue. Hamilton then turned the police vehicle's lights toward a group of police officers and others. Mikolic and O'Connor identified the defendant as the man who had shot at them earlier. The defendant later admitted that he owned a .38 caliber revolver, but claimed that he had last seen it several days before at his residence. At trial, Mikolic and O'Connor again identified the defendant as the individual who had shot at them on the evening in question.

I

The defendant first asserts that the admission of the out-of-court and in-court identifications of him by Mikolic and O'Connor violated his due process rights under article first, §§ 8 and 9, of the Connecticut constitution. After a full evidentiary hearing, the trial court denied the defendant's motion to suppress the out-of-court identification pursuant to the fifth and fourteenth amendments to the federal constitution. The defendant now claims that the out-of-court identification tainted the in-court identification and that the admission of both identifications violated the Connecticut constitution. Because these claims are raised for the first time on appeal, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989).

A party can prevail on a claim not adequately presented at trial only if all of the following conditions are met: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id., at 239, 567 A.2d 823. "Under Golding ... this court is free to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances...." (Citations omitted; internal quotation marks omitted). State v. Pratt, 235 Conn. 595, 603, 669 A.2d 562 (1995). We, therefore, focus here on the third prong of Golding, i.e., whether the alleged constitutional violation clearly exists and, if so, whether it clearly deprived the defendant of a fair trial. We conclude that the defendant cannot prevail on this claim because a constitutional violation does not clearly exist.

In reviewing a trial court's decision to admit evidence of identification, "[w]e will reverse the trial court's ruling ... only where there is abuse of discretion or where an injustice has occurred ... and we will indulge in every reasonable presumption in favor of the trial court's ruling.... Because the issue of the reliability of an identification involves the constitutional rights of an accused, [however] we are obliged to examine the record scrupulously to determine whether the facts found [by the trial court] are adequately supported by the evidence and whether the court's ultimate inference of reliability was reasonable." (Citation omitted; internal quotation marks omitted.) State v Figueroa, 235 Conn. 145, 155, 665 A.2d 63 (1995). We inquire "whether the identification procedure was unnecessarily suggestive ... and if ... so, whether the identification was nevertheless reliable based on an examination of the totality of the circumstances." (Internal quotation marks omitted.) Id., at 155-56, 665 A.2d 63. "[R]eliability is the linchpin in determining the admissibility of identification testimony...." (Internal quotation marks omitted.) Id., at 157, 665 A.2d 63, quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

To prevail on this claim, the defendant must establish that the identification was both unnecessarily suggestive and unreliable under the totality of the circumstances. State v. Figueroa, supra, 235 Conn. at 155-56, 665 A.2d 63. Because our determination that the identifications were reliable would obviate the need to determine whether they were "unnecessarily suggestive"; see id.; we address the reliability issue first.

The trial court determined that the out-of-court identification was neither unnecessarily suggestive nor unreliable under the totality of the circumstances. In reviewing that determination, we consider the following factors: the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. See State v. Mitchell, 204 Conn. 187, 202, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108...

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