State v. Henderson, 13264

• Decision Date: 19 June 1995
• Docket Number: No. 13264,13264
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Mitchell HENDERSON.

Page 585

658 A.2d 585

37 Conn.App. 733

STATE of Connecticut v. Mitchell HENDERSON.

No. 13264.

Appellate Court of Connecticut.

Argued Feb. 7, 1995.

Decided May 9, 1995.

Certification Denied June 19, 1995.

James P. Ray, Sp. Public Defender, with whom, on the brief, was Craig A. Raabe, Sp. Public Defender, for appellant (defendant).

Mary H. Lesser, Asst. State's Atty., with whom, on the brief, were James E Thomas, State's Atty., and Carl E. Taylor, Asst. State's Atty., for appellee (State).

Before O'CONNELL, HEIMAN and SCHALLER, JJ.

SCHALLER, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(3), ¹ attempt to escape from custody in violation of General Statutes §§ 53a-171, 53a-168(2) and 53a-49, ² assault in the third degree in violation of General Statutes § 53a-61(a)(1), ³ and threatening in violation of General Statutes § 53a-62(a)(1). ⁴ The defendant pleaded guilty to criminal mischief in the third degree in violation of General Statutes § 53a-117(a)(1)(A). The defendant also pleaded guilty to being a persistent dangerous felony offender in violation of General Statutes § 53a-40(a) and to being a persistent serious felony offender in violation of General Statutes § 53a-40(b) and (g).

The defendant claims that (1) the trial court improperly denied his motion to suppress out-of-court identification testimony, (2) the state presented insufficient evidence of physical injury to the victim to support the conviction of assault in the third degree, (3) the state failed to prove that he was in custody for purposes of the attempt to escape charge, (4) he was denied a fair trial by the state's charging him with assault in the third degree without a good faith basis, giving the jury an opportunity to reach a compromise verdict, and (5) the trial court improperly denied his motion for a new trial based on his claim of ineffective assistance of counsel. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of January 17, 1992, the victim, Victorene Hazel, and her companion, Codella Webley, crossed Baltimore Street in Hartford after leaving the Shawmut Bank. When the two women reached the corner of Baltimore Street and Homestead Avenue, they were approached by the defendant who demanded that Hazel hand over her purse to him. The defendant was standing in front of Hazel, at a distance of one and one-half to two feet. Her view of the defendant was clear and unobstructed. After Hazel refused to turn over her purse, the defendant pulled out a knife, grabbed her by the shirt and hit her. When he grabbed Hazel, who had a heart condition, she experienced pain in her chest. The defendant threatened to kill her if she did not give him the purse. When he swung the knife, she freed herself from his grasp and ran in the direction of the Shawmut Bank with the defendant chasing her. Hazel's purse fell off her shoulder as she was running and the defendant picked it up. Hazel entered the bank screaming that she had been robbed and needed help. When Webley reached the bank, she noticed that Hazel was breathing heavily, holding her chest and saying, "My heart, my heart."

At approximately the same time, Howard Fraser and his cousin, Earl Forrest, were driving on Homestead Avenue when they stopped to look up a telephone number. As Forrest was looking for the number, Fraser noticed from a distance of five to seven yards the victim struggling with her assailant. As he and Forrest were about to drive off, he saw the defendant grab the purse from Hazel. When the victim began to scream, Fraser realized that she was being robbed. Fraser watched the defendant run up Baltimore Street and enter onto private residential property. Fraser realized that the defendant would have to exit on Kent Avenue, the street parallel to Baltimore Street. Fraser and Forrest drove to Kent Avenue in anticipation of seeing the defendant. They saw him running down Kent Avenue toward Albany Avenue with a purse under one arm. Fraser opened the passenger door as they drove up next to the defendant. Forrest told the defendant that they were the police and ordered him not to move. Fraser then jumped out the passenger door and grabbed the defendant. When the defendant resisted, Forrest joined Fraser in an attempt to subdue the defendant. Both Fraser and Forrest repeatedly called for help as they were struggling with the defendant. The defendant struck Fraser during the struggle, and Fraser suffered a wrist injury from striking the defendant.

Officer Douglas Frederick of the Hartford police department arrived approximately five minutes after the struggle had begun and saw the defendant holding the victim's purse. While the defendant was struggling with Forrest and Fraser, the victim's purse fell and its contents scattered onto the street. Frederick's attempt to handcuff the defendant was unsuccessful because he continued to resist fiercely. Frederick radioed for assistance and, finally, with the help of other police officers, managed to get the defendant into the police cruiser. Frederick then informed the defendant that he was under arrest.

At trial, Fraser identified the defendant in court as the man he had caught running down Kent Street with the victim's purse and who had earlier robbed Hazel on Homestead Avenue.

After Hazel and Webley left the bank, a man in a truck informed them that the robber had been apprehended on Kent Avenue. The man drove both women to Kent Avenue. After getting out of the truck, Hazel and Webley saw the defendant sitting in the police cruiser. Frederick had put the victim's purse on top of the cruiser for safekeeping while he was trying to restrain the defendant. Frederick noticed two women running down Kent Avenue toward his cruiser and he heard Hazel yelling, "That's him, he robbed me." Frederick asked both Hazel and Webley to make sure that the man in the cruiser was indeed the robber. Without any difficulty, both women positively identified the defendant as the robber. The weather was clear and there was adequate sunlight to enable the women to make the identification. Although Frederick was able to recover the purse, his search of the defendant did not produce a knife.

After telling the defendant that he was under arrest and placing him in the police cruiser, Frederick transported him from the scene. The defendant yelled obscenities and threatened to kill the officer. As Frederick drove down Kent Avenue toward Albany Avenue, the defendant became increasingly violent. The defendant kicked out the rear window of the cruiser and attempted to climb out while the cruiser was in motion. The defendant was able to get his upper torso out of the rear window. Frederick stopped the car and radioed for assistance and an ambulance. Frederick then pulled the defendant out of the cruiser and sat on him until help arrived. When the ambulance arrived, the defendant was put in a body bag and transported to St. Francis Hospital. The defendant was treated for several cuts he had sustained while attempting to climb out of the rear window of the cruiser.

The defendant was convicted by a jury of four counts including robbery in the first degree in violation of General Statutes § 53a-134(a)(3). After the verdict, the defendant moved for a judgment of acquittal and a new trial, which the trial court denied.

I

The defendant claims that the trial court violated his right to due process guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution by improperly denying his motion to suppress the out-of-court identification by the victim, Hazel, and her friend, Webley, when the identification procedure was unnecessarily suggestive and unreliable. ⁵

The fourteenth amendment to the United States constitution guarantees that "[n]o State shall ... deprive any person of life, liberty or property, without due process of law...." The purpose of the fourteenth amendment is to protect a person from " 'conduct that may be fairly characterized as "state action." ' " State v. Holliman, 214 Conn. 38, 43, 570 A.2d 680 (1990), quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 924, 102 S.Ct. 2744, 2747, 73 L.Ed.2d 482 (1982). " '[T]he Fourteenth Amendment, which prohibits the states from denying federal constitutional rights and which guarantees due process, applies to acts of the states, not to acts of private persons or entities.' Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S.Ct. 2764, [2769] 73 L.Ed.2d 418 (1982)." State v. Holliman, supra, at 43, 570 A.2d 680. "It is well established that conduct that may fairly be characterized as state action is a necessary predicate to a challenge under the due process clause of the fourteenth amendment to the United States constitution." Id., at 45, 570 A.2d 680. The defendant has failed to demonstrate any state action that would trigger the protection of the due process clause of the fourteenth amendment. The trial court's decision not to suppress testimony of the victim and her companion's identification was therefore proper.

The one-on-one confrontation between the victim and the defendant was not arranged by the police. The victim's spontaneous identification of the defendant as the robber took place while she was running toward the police cruiser in which he was detained. See State v. Villafane, 171 Conn. 644, 657-58, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984) (identification from spontaneous confrontation between witness and defendant that was not arranged by police did not violate defendant's due process rights). The police officer could not have known the...