State v. Green, 11147

CourtSupreme Court of Connecticut
Writing for the CourtARTHUR H. HEALEY
Citation480 A.2d 526,194 Conn. 258
PartiesSTATE of Connecticut v. Demetrius GREEN.
Docket NumberNo. 11147,11147
Decision Date14 August 1984

Page 526

480 A.2d 526
194 Conn. 258
STATE of Connecticut
Demetrius GREEN.
No. 11147.
Supreme Court of Connecticut.
Argued May 3, 1984.
Decided Aug. 14, 1984.

Page 528

[194 Conn. 259] John R. Williams, New Haven, for appellant (defendant).

Julia D. Dewey, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty. and Patrick J. Clifford, Asst. State's Atty., for appellee (State).


[194 Conn. 259] ARTHUR H. HEALEY, Associate Justice.

The defendant, Demetrius Green, was convicted after a trial to a jury of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-70(a) 1 and 53a-49(a). On this appeal, he claims: (1) that the trial court erred in the admission, on the state's case-in-chief, of the defendant's refusal to give the police a written statement which refusal occurred after the defendant was given Miranda warnings; (2) that the state "suppressed" a police photo which the victim had told the police resembled the perpetrator of the crime charged; and (3) that the state did not prove him guilty beyond a reasonable doubt of the crime charged.

The jury could reasonably have found the following: At about 7:30 p.m. on September 23, 1979, the defendant, [194 Conn. 260] wielding a handgun, attempted to attack a sixteen-year-old girl in New Haven. The victim was walking from the house of her girlfriend on Washington Avenue to her home on Kimberly Avenue which was nearby. While walking easterly in the dark along the Boulevard near Lamberton Street, the victim saw the defendant walking westerly on the Boulevard coming over a bridge. He crossed the street and walked towards her. The defendant came up to her and said, "[t]urn around and go the other way." She saw that he had a gun and she did as

Page 529

he ordered. Directing her to go into the bushes by a park fence which was on the Boulevard, he told the victim "to lay down and take off [her] clothes." She got on the ground, fumbled with her "pants area" as if she were going to take her pants off but she did not in fact "undo them." While she was lying on her side, the defendant "knelt down ... on the ground too." The victim was crying, making excuses, telling him she was thirteen years old, that her stomach hurt, and that her brother was coming to meet her "over the bridge." When he first told her to take her clothing off, he put his gun away in his belt, and he began to take his clothing off by starting "to loosen his pants [and] [h]e started to undo his button." She screamed and attempted to get away, but he held her down and hit her on the side of her head with his hand. During this time, he "kept telling [her] to take off [her] clothes." After she made her excuses, "he tried to take [her] pants off" and "he put [the gun] to [her] head" and said that she "was dead." While he was trying to force her pants off, the zipper on her pants broke. He then told her, "Get up. Get out of here." This entire incident lasted about fifteen minutes.

The victim then got up and returned to her girlfriend's house on Washington Avenue. When she reached the front of that house, the defendant was on that street. He turned around and pointed his gun at [194 Conn. 261] her, whereupon she started screaming and he fled. The police were called to the girlfriend's house and the victim's mother also went there.

Shortly thereafter, a police officer took the victim and her mother to police headquarters where a statement was taken from the victim by Detective Nicholas Franco after she had gone through five or six trays of police photos without making a positive identification of her assailant. At the trial, the victim said she had told Franco that one photo "looked like [her assailant]" 2 but that she did not tell Franco that "it was him." Franco testified at the trial that the victim termed the photo "as a possible look alike." At police headquarters that night, Franco made a note of the date of that photo and its number. This photo was not produced before or during the trial.

The victim also gave Franco a description of her assailant while at police headquarters and Franco caused it to be broadcast on the police radio. At about ten o'clock that night, while Franco was driving the victim and her mother home, he received a broadcast from another police officer that he had stopped a person who fitted the description of the victim's assailant. 3 Franco then drove to Congress Avenue and Arch Street where the defendant was with at least two police officers. The victim "positively identified" him as the perpetrator, both from a distance and when the officers brought him over to the police car, at which time she also heard his voice when he asked her whether she was "sure" that he was her assailant.

Leaving the scene, Franco took the victim and her mother home and then he returned to police headquarters. [194 Conn. 262] At police headquarters Franco spoke to the defendant. He advised the defendant of his Miranda rights and then asked him if he wanted to give a formal statement. Franco testified on direct examination during the state's case-in-chief that the defendant said that "he didn't want to give a statement, but it wasn't him and that he was at his mother's house till about 7:30 that night."


We take up first the defendant's claim that the state "suppressed" a police photo which the victim stated "looked like" the

Page 530

defendant. The defendant claims that this suppression denied him his fourteenth amendment due process rights. In doing so, he refers to the circumstances that his conviction was based on an out-of-court identification which the court considered "unnecessarily suggestive," 4 that he was not wearing the trousers described by the victim when he was arrested, and that he did not have the weapon she had described. He therefore argues that the "suppression" of this photo precluded his use of it to impeach the credibility of the victim.

With regard to the photo in question, Franco testified on cross-examination that he did not set this photo aside because it was department practice not to do so unless the viewer made a positive identification. Franco also testified on cross-examination that he had not made any attempt to look for this photo "within the last week or two." During the trial, the state said that [194 Conn. 263] it had informed defense counsel "before this case started" that the photo was unavailable, that it had made an attempt to find the photo, but it could not be located. 5

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), the United States Supreme Court said that "suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." See Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706, reh. denied, 409 U.S. 897, 93 S.Ct. 87, 34 L.Ed.2d 155 (1972). The United States Supreme Court delineated the parameters in Moore v. Illinois, supra. In Moore, the court said that "[t]he heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence." Moore v. Illinois, supra, 408 U.S. 794-95, 92 S.Ct. at 2567-68. To prevail on a claimed violation of Brady and its progeny, a defendant must establish each of these three prongs. See Moore v. Illinois, supra, 794-95; State v. Doolittle, 189 Conn. 183, 197, 455 A.2d 843 (1983); People v. Hedrick, 192 Colo. 37, 40-41, 557 P.2d 378 (1976).

In United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976), the court further elaborated on the materiality prong, stating that the prosecutor does not violate his constitutional duty of disclosure "unless his omission is of sufficient significance to result in the denial of the defendant's right [194 Conn. 264] to a fair trial." In illuminating the proper standard of materiality that must be shown, the Agurs court said that "if the omitted evidence creates a reasonable doubt [of guilt] that did not otherwise exist, constitutional error had been committed." United States v. Agurs, supra, 112, 96 S.Ct. at 2401. Pointing out that this meant that "the omission must be evaluated in the context of the entire record," it went on to note that "[i]f there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial, [but] on the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance

Page 531

might be sufficient to create a reasonable doubt." United States v. Agurs, supra, 112-13, 96 S.Ct. at 2401-02. That court, however, also said that "[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." United States v. Agurs, supra, 109-10, 96 S.Ct. at 2400; see State v. Doolittle, supra, 189 Conn. 197, 455 A.2d 843.

Our analysis will proceed on the assumption that the failure of the police to preserve the photo was a "suppression." 6 Under the Brady line of decisions, the evidence suppressed must not only be favorable to the defendant, but also material to either his guilt or [194 Conn. 265] punishment. Moore v. Illinois, supra, 408 U.S. 794-95, 92 S.Ct. 2567-68. Evidence is material if it "could ... in any reasonable likelihood have affected the judgment of the jury." Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3...

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