State v. Garner

• Citation: 270 Conn. 458,853 A.2d 478
• Decision Date: 03 August 2004
• Docket Number: (SC 16710).
• Court: Supreme Court of Connecticut
• Parties: STATE OF CONNECTICUT v. GARRY GARNER.

270 Conn. 458

853 A.2d 478

STATE OF CONNECTICUT v. GARRY GARNER.

(SC 16710).

Supreme Court of Connecticut.

Argued February 17, 2004.

Officially released August 3, 2004.

Sullivan, C. J., and Borden, Palmer, Vertefeuille and Zarella, Js.

Pamela S. Nagy, special public defender, for the appellant (defendant).

Susann E. Gill, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, Joseph T. Corradino, senior assistant state's attorney, and Pamela J. Esposito, assistant state's attorney, for the appellee (state).

Opinion

SULLIVAN, C. J.

The defendant, Garry Garner, was convicted of two counts of capital felony in violation of General Statutes (Rev. to 1997) § 53a-54b (8) and (9),¹ two counts of murder in violation of General Statutes § 53a-54a,² and one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48³ and 53a-54a for the deaths of Karen Clarke and Leroy Brown. Following a jury trial, the court sentenced the defendant to life imprisonment without the possibility of release to be served consecutively with his federal sentence for narcotics violations. This appeal followed. We affirm the judgment of the trial court.

Prior to trial, the defendant filed a motion to suppress any in-court and out-of-court identifications of the defendant that the state might try to elicit from witnesses, on the ground that the police identification procedures had been unnecessarily suggestive and rendered any identification of the defendant unconstitutionally unreliable. The defendant also filed a motion to dismiss the murder and capital felony charges on the ground that the principal had been acquitted of those charges. After a hearing, the trial court denied both motions.

The defendant claims on appeal that the trial court improperly: (1) denied the motion to exclude the identifications; (2) denied the motion to dismiss the charges of murder and capital felony; and (3) instructed the jury that it could find the defendant guilty of murder and capital felony on the basis of conspiratorial liability pursuant to Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946). The defendant also argues that the evidence was insufficient to support his conviction.⁴ We conclude that the court properly denied the motion to suppress and the motion to dismiss, and that the court's instructions regarding Pinkerton liability were proper. We further conclude that the evidence was sufficient to support the defendant's conviction.

The jury reasonably could have found the following relevant facts. The defendant was an associate of Russell Peeler (Russell), who ran an illicit crack cocaine operation in the city of Bridgeport. Russell ran the drug operation with his brother, Adrian Peeler (Adrian). Rudy Snead began assisting Russell with the drug operation when Adrian was incarcerated in federal prison for narcotics violations until April, 1998.

Following a dispute, Russell attempted to murder Snead in September, 1997. Russell was in a car with several of his drug operation associates, including his cousin, Ryan Peeler, Shawn Kennedy, Corey King and Kybarris Taylor, when he saw Snead's car at a barbershop in Bridgeport. Russell followed Snead's vehicle after Snead left the barbershop. Russell's car pulled up alongside Snead's car and Russell shot at Snead, injuring him. Two small children were in the backseat of Snead's car at the time of the attempted murder. One of the children, Brown, was the son of Snead's girlfriend, Clarke.

Russell was charged with attempt to commit murder but was released after he posted bond. In May, 1998, he succeeded in murdering Snead. He was subsequently charged with murder and was again released when he posted bond. As a condition of his release, the court imposed a curfew and ordered that he wear an electronic bracelet so that his compliance with the curfew could be monitored.

After his release, Russell tried to discover the identities of the state's witnesses in the pending murder case. He told Angelina Keene, King and Kennedy that he would kill the witnesses once he knew who they were. He suspected that Clarke and Brown, among others, were the state's witnesses because he knew that Brown was in the back of Snead's car during the attempted murder. After Snead's murder, the Bridgeport police had protected Clarke and Brown as undisclosed witnesses for the state, but they discontinued protection when Clarke and Brown moved to a house on Earl Avenue in Bridgeport.

Norman Williams owned the house at 200 Earl Avenue, which was across the street from the Clarke residence, and lived there with his son, Marcus Williams, Josephine Lee and Kathy Esposito. All of them used crack cocaine. Russell regularly visited 200 Earl Avenue to use the kitchen to "cook" crack cocaine. In exchange for the use of the kitchen, he gave Norman Williams some of the finished product. In addition, Russell frequently sold crack cocaine to Norman Williams and delivered it to the house. He visited the house with various associates, including the defendant. One afternoon, when Russell was at 200 Earl Street to deliver crack cocaine, he saw Brown in the driveway across the street. Brown froze and ran inside his house when he saw Russell. At that time, Russell became convinced that Brown was one of the witnesses he had been looking for. He began to speak openly about killing Brown and his mother.

Lee testified that Russell was at 200 Earl Avenue on January 6, 1999. He went into the front room of the house and surveyed the Clarke house with one of his associates. Later, the defendant came to the house to deliver some crack. When Lee left the house to buy cigarettes, she noticed the defendant walking back and forth on the street in front of the Clarke house but he was gone when she returned.

Later that day, Adrian arrived at the house. Lee had a conversation with Adrian and Russell in which Russell asked Lee to kill Clarke and Brown. She refused. Russell then asked Adrian to kill Brown and his mother. Adrian agreed. Russell asked Lee to assist Adrian by calling him when Clarke and Brown were at home and by helping Adrian gain entry into the Clarke house. She agreed and Russell gave her a handful of crack cocaine.

On the evening of January 7, 1999, Lee called Russell's beeper number when she saw Clarke arrive home with Brown. Adrian arrived at the house at 200 Earl Avenue shortly thereafter. Adrian and Lee crossed the street toward a car parked in front of the Clarke house. The defendant sat in the front seat of the car. Adrian told the defendant that he was going to "take care of business." The defendant then threatened Lee that he would kill her and all the residents at 200 Earl Avenue if she talked to anyone about the scheme to murder Clarke and Brown.

Lee and Adrian then proceeded to the Clarke house. After Lee rang the doorbell, Clarke answered and asked who it was. Lee said, "the girl across the street," and Clarke opened the door. Adrian forced his way in and fired a shot. Lee followed and saw Clarke and Brown run upstairs with Adrian in pursuit, shooting at them. He shot and killed Clarke in one of the bedrooms. Lee waited on the stairs and heard Brown calling for his mother. Adrian then went back into the hallway and shot Brown in the head, killing him. Adrian passed Lee as he went down the stairs and threatened to kill her if she said anything about what she had witnessed. He then exited the house. When Lee left the house shortly thereafter, both Adrian and the defendant's car were gone.

Later that day, Adrian, King and Kennedy went to the Stamford mall. Adrian told Kennedy that they were going to meet the defendant there because he was "stranded." After the group met the defendant at the mall, Adrian gave the defendant some money. Kennedy testified that the defendant was not stranded, but was using Russell's blue rental car. The next day, Ryan Peeler drove Russell to the Comfort Inn in Milford to meet Adrian. Ryan Peeler saw the defendant in the hotel parking lot.

After Russell was arrested for the murders, he told Keene to get the remaining money from the drug operation from Kennedy. She did so and gave a portion of it to the defendant.

Demetrius Geter, the defendant's half brother, testified that sometime after the murders he approached the defendant about procuring a gun. The defendant responded that the only gun he had access to had been used in a homicide and that Adrian had given it to him. Additional facts will be set forth as necessary.

I IDENTIFICATION OF THE DEFENDANT AS THE DRIVER BY LEE

At trial, the defendant filed a motion to suppress Lee's out-of-court and in-court identifications of the defendant as the driver of the car that had been parked in front of the Clarke house before the murders. At the suppression hearing, the court determined that a photograph of the defendant that had been shown to Lee by James Lawton, an agent with the federal bureau of investigation in March, 1999, was unnecessarily suggestive.⁵ Nevertheless, the trial court concluded that Lee's August, 1999 identification and her in-court identifications of the defendant were reliable under the totality of the circumstances and, therefore, denied the defendant's motion to suppress. The defendant claims that the trial court improperly admitted the identifications. We disagree.

The following evidence from the suppression hearing is relevant to our resolution of these claims. Lee testified that she had smoked crack cocaine on the day of the murders. The crack had not caused her to hallucinate, but had made her paranoid. It was dark when she left 200 Earl Avenue with Adrian and walked across the street toward a car parked in front of the Clarke house. She was nervous. After Adrian briefly conversed with the driver, the driver threatened to kill Lee's entire household if she talked. Lee testified that she could see the driver and that he was familiar to...