State v. Dickson

• Decision Date: 03 June 2014
• Docket Number: No. 35542.,35542.
• Citation: 91 A.3d 958,150 Conn.App. 637
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Andrew DICKSON.

150 Conn.App. 637

91 A.3d 958

STATE of Connecticut

v.Andrew DICKSON.

No. 35542.

Appellate Court of Connecticut.

Argued March 13, 2014.

Decided June 3, 2014.

Andrew S. Liskov, Bridgeport, for the appellant (defendant).

Katherine E. Donoghue, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph T. Corradino, senior assistant state's attorney, for the appellee (state).

LAVINE, KELLER and FLYNN, Js.

LAVINE, J.

The defendant, Andrew Dickson, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a–59 (a)(1), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–48 and 53a–134 (a)(4). On appeal, the defendant claims that the trial court's rulings with regard to (1) the in-court identification made by the complaining witness, (2) juror misconduct, and (3) the charge to the jury constituted an abuse of its discretion and thereby violated his state and federal constitutional rights. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts beyond a reasonable doubt. Sometime prior to January 9, 2010, Akeem Lyles placed an advertisement on Craigslist offering to sell an all-terrain vehicle.¹ Lyles had no intention of selling such a vehicle, however, but planned to rob the person who arrived at an agreed upon location intending to purchase the vehicle.² On January 3, 2010, Albert Weibel, a Massachusetts resident, and Matthew Shaw responded via e-mail to Lyles' Craigslist advertisement. Lyles communicated with Weibel via telephone, but he did not give Weibel his name. The two arranged to meet at Terrace Circle in Bridgeport on the night of January 9, 2010. Weibel and Shaw borrowed a pickup truck and drove to Terrace Circle as agreed. When they arrived at Terrace Circle, it was dark, and no one was present. They waited approximately ten minutes until Weibel called Lyles. Weibel stated that he was waiting outside with a friend.

At the time, Lyles was in a nearby apartment with Giovanni Reyes and the defendant. Lyles explained his plan to the two men and asked if they wanted to join him because he needed help controlling more than one victim. Reyes and the defendant agreed. They left the apartment armed with guns Lyles provided at approximately 9:30 p.m. Lyles had a .40 caliber Smith and Wesson handgun; Reyes had a paintball gun that resembled an assault rifle. The defendant had a .38 special revolver.

Weibel called Lyles again. Lyles told him that he was “out back trying to unlock the quad ... come around and check it out.” Weibel took his flashlight, left the pickup, and walked between two nearby buildings. Shaw stayed in the pickup and observed three “black” men walk in Weibel's direction. Weibel turned right when he passed between two buildings. Lyles called out to him, asking if it were he with the flashlight. When Weibel responded affirmatively, Lyles told him to turn and walk in the other direction. Weibel walked to the other side; and when he was close to Lyles, Lyles put a gun to Weibel's head and demanded money. Weibel told him he had no money. He turned around and saw Reyes and the defendant with guns.³ The men demanded money of him. Weibel attempted to walk away, but the men hit him, demanded money, and took his cell phone. Weibel covered his head, called for help, and walked toward the pickup. As he got closer to the pickup, Lyles broke away from the group and pointed a gun at Shaw.

Shaw was nervous about the situation and was in the process of sending a text message to Weibel when Lyles tapped on the window of the pickup and pointed a gun at his head. Lyles told Shaw to get out of the pickup. As he was doing so, Lyles grabbed him and threw him against a parked car and screamed at him to give him the money. When Shaw informed Lyles that he did not have the money, Lyles took Shaw's cell phone and wallet. Lyles held a gun to the back of Shaw's head and continued to demand money. He also patted him down. Reyes found between $40 and $50, an iPod, and a global positioning system in the pickup and took them.

In the meantime, as Weibel kept trying to get to the pickup, Reyes and the defendant kept demanding money and kept hitting him. The defendant held a gun to Weibel's head and threw him against a dumpster near the pickup. Reyes looked through the pickup for money. One of the men yelled that “this is taking too long” and that the police would arrive soon and ran. The defendant stayed behind with his gun pointed at Weibel. The defendant stated to Weibel, “You're a dead man”; then shot Weibel in the leg and neck, and ran away. Shaw saw Weibel on the ground coughing up blood. He ran to hold Weibel and screamed for help.

The police arrived quickly. Paramedics arrived as well and took Weibel to a hospital, where he remained for eleven days. According to Vincent A. Manjoney, Jr., a physician, if Weibel had not received immediate medical attention, he would have bled to death. Approximately one year later, Weibel was unable to identify the person who shot him after viewing a police photographic array that included a photograph of the defendant.⁴

After the defendant shot Weibel, he met with Lyles and Reyes at the place they had been prior to the robbery. They borrowed a car and drove to “L's” house on Louis Street in south Bridgeport to avoid the police. Once there, Lyles asked the defendant why he had shot “the guy” and where he had shot him. The defendant replied that he “shot him in his leg and in his head because we didn't get any money.”

The defendant was arrested and charged with attempt to commit murder in violation of General Statutes §§ 53a–49 and 53a–54 (a), assault in the first degree in violation of § 53a–59 (a)(1), conspiracy to commit robbery in the first degree in violation of §§ 53a–48 and 53a–134 (a)(4), and two counts of robbery in the first degree in violation of § 53a–134 (a)(4). The jury found him guilty of assault in the first degree and conspiracy to commit robbery. The jury found him not guilty of the other charges. The court sentenced the defendant to an effective term of twenty-five years in prison, followed by ten years of special parole. Thereafter, the defendant appealed.

I

The defendant first claims that his state and federal rights to due process were denied when the court abused its discretion by permitting the complaining witness to identify him in court by means of a procedure that he claims is unnecessarily suggestive.⁵ We disagree.

The following procedural history is relevant to the defendant's claim. Prior to the presentation of evidence on August 31, 2012, the defendant filed a motion in limine, pursuant to article first, § 8, of the constitution of Connecticut, to preclude Shaw and Weibel from making an in-court identification of him. In his motion to preclude, the defendant asserted that the in-court identification procedure typically employed in criminal matters where the defendant is seated at counsel table is unnecessarily suggestive. He further contended that that identification procedure is conducive to such irreparable misidentifications as to render them constitutionally unreliable and a violation of his state right to due process of law. The defendant requested that an alternative identification procedure be used, i.e., that the alleged perpetrator “be selected from a larger group of individuals who possess similar characteristics, including age, weight, complexion and hair style.” After the jury had been selected and before the presentation of evidence, the defendant orally renewed his motion in limine. The court denied the motion in limine, stating that the identification would proceed in the “traditional manner.”

On direct examination, Weibel testified that he was shot by an African–American male. He also identified the defendant, who was seated next to his defense counsel. On cross-examination, the defendant questioned Weibel about the location of the robbery, the lack of lighting, and Weibel's inability to identify the defendant from a photographic array presented to him by the police.

The state also presented testimony from Lyles, a cooperating witness. Lyles identified the defendant, whom he had known his entire life because their mothers were friends. He also testified that he told the defendant about his plan to rob Weibel and that the defendant wanted to participate in the robbery. He also testified that the defendant took a .38 special revolver to the robbery and held it to Weibel's head. As he was fleeing the scene, Lyles heard two gunshots, which he recognized as coming from a .38 special. When Lyles asked him, the defendant stated that he shot Weibel in the leg and head because the conspirators did not get any money. Lyles' proffer and plea agreements were admitted into evidence, and both parties questioned him extensively about his understanding of them. During his cross-examination of Lyles, the defendant repeatedly pointed out numerous instances in which Lyles had been untruthful.⁶ We now turn to the defendant's claim.

The law, presently, is clear that an in-court identification need not be excluded if it is not the product of an impermissible out-of-court identification. Although the “United States Supreme Court has set standards as to when a pretrial identification must be excluded and under what circumstances an in-court identification that follows an impermissible pretrial identification must be excluded ... [that court] has not set any guidelines for in-court identification procedures or indicated that in-court identifications must be made in any way that is not suggestive.... Generally, an in-court testimonial identification need be excluded, as violative of due process, only when it is tainted by an out-of-court identification procedure which is unnecessarily suggestive and conducive to irreparable...