State v. Howard

• Decision Date: 17 March 1992
• Docket Number: No. 14285,14285
• Citation: 221 Conn. 447,604 A.2d 1294
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Everald HOWARD.

Page 1294

604 A.2d 1294

221 Conn. 447

STATE of Connecticut v. Everald HOWARD.

No. 14285.

Supreme Court of Connecticut.

Argued Nov. 8, 1991.

Decided March 17, 1992.

Elizabeth M. Inkster, Asst. Public Defender, with whom, on the brief was G. Douglas Nash, Public Defender, for appellant (defendant).

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Rosita M. Creamer, Sr. Asst. State's Atty., for appellee (state).

Before SHEA, CALLAHAN, COVELLO, BORDEN and BERDON, JJ.

SHEA, Associate Justice.

After a jury trial, the defendant, Everald Howard, was found guilty of the following crimes: robbery in the first degree, General Statutes § 53a-134(a)(4); ¹ conspiracy to commit robbery in the first degree, General Statutes §§ 53a-48 and 53a-134(a)(4); ² burglary in the first degree, General Statutes § 53a-101(a)(2); ³ conspiracy to commit burglary in the first degree, General Statutes §§ 53a-48 and 53a-101(a)(2); ⁴ and assault in the second degree, General Statutes § 53a-60(a)(2). ⁵ He was subsequently sentenced to eighteen years imprisonment for the robbery conviction, eighteen years for the conspiracy to commit robbery conviction, ten years for the burglary conviction, ten years for the conspiracy to commit burglary conviction, all of which were ordered to be served concurrently, and five years for the assault conviction, to be served consecutive to the other sentences, resulting in an effective term of twenty-three years imprisonment. The defendant appeals from that judgment claiming that the trial court improperly: (1) allowed the admission of in-court and out-of-court identifications of him that were the result of an unnecessarily suggestive pretrial identification procedure; (2) denied him access to certain psychiatric and juvenile court records pertaining to an alleged accomplice who testified for the prosecution; and (3) convicted him of two counts of conspiracy arising out of a single agreement. We reverse the judgment in part.

The jury could reasonably have found the following facts. On January 11, 1989, Dennis Crosswell, Charlyene Holmes, another person identified only as Jasper and the defendant agreed to steal $15,000 that Jasper believed was hidden in an apartment in a three-family house in Hartford. ⁶ They decided that Holmes would knock on the door to the apartment, in the hope that, because she was a woman, someone unsuspecting would open it and that they would then all enter the house and steal the money.

That evening, Crosswell, Holmes, Jasper and the defendant drove to the house as agreed. Holmes checked the rear door of the first floor apartment and, finding it locked, returned to the car, where the defendant handed her a loaded revolver. Approximately one-half hour later, Holmes, accompanied by Crosswell, who was wearing a mask, and the defendant, who was not, knocked on the door of the first floor apartment. Suzette Hutchinson came to the door and asked who was there. She opened the door after Holmes had falsely identified herself as "Tuesday," Hutchinson's sister. Crosswell, Holmes and the defendant then pushed the door wide open and entered the kitchen of the apartment where Hutchinson had been watching television with Chesley Smith, her cousin, and Hilda Edwards, their grandmother. Holmes gave the revolver to the defendant, who pointed it at Hutchinson, Smith and Edwards and ordered them into the bedroom. Hutchinson and Smith complied, but Edwards remained in the kitchen because of her limited ability to walk. Already in the bedroom were several other relatives of Hutchinson: Roxanne Facey, her sister, Timothy Hester, her ten year old brother and Travalis Johnson, her four year old nephew. The defendant pointed the revolver at the group in the bedroom and demanded money. Smith, Hutchinson and Facey gave the defendant a total of $43.75. Meanwhile, Holmes searched the bedroom, overturning the bed, pulling off the mattress and tearing out dresser drawers, but failed to discover any money. The defendant then threatened to shoot Smith if more money was not handed over. When Smith denied knowing about any other money in the apartment, the defendant hit him on the head with the revolver. Smith knelt down and began crying. The defendant then took him to another bedroom where he again hit him on the head with the revolver and punched him in the stomach and shoulders.

While these events were unfolding, Edwards, the grandmother, was screaming from the kitchen. Crosswell hit Edwards on the head to silence her, causing her to cry out louder. When Smith attempted to come to her aid, the defendant prevented him from doing so. The search for money continued throughout the apartment until Holmes noticed a small basement room in which she discovered a pouch containing $15,000. Holmes, Crosswell and the defendant then ran from the house and later divided the money, the defendant receiving $5000, Holmes receiving $4000, Crosswell receiving $2000 and Jasper receiving $4000.

I

In his first claim on appeal, the defendant maintains that identifications of him made from an impermissibly suggestive photographic array and again at trial should have been suppressed as unreliable and violative of his due process rights under the state and federal constitutions. We conclude that no constitutional violation occurred by admission of the pretrial and trial identifications.

Some background information is necessary for the proper analysis of this claim. Shortly after the crimes were committed, the victims, according to a police report, described the assailants "as one being a Jamaican male ... five feet eleven in height, a hundred and seventy pounds in weight, dark complexion, having [dreadlocks] and having a tan scarf on the lower portion of his face. The other Jamaican male was described as being five foot nine in height, a hundred and sixty pounds in weight, having [dreadlocks], a mustache and beard, and bearing a handgun." From these descriptions as well as information obtained from other sources, the police suspected the defendant and Crosswell of having committed the crimes. They placed pictures of the two men in an array containing photographs of a total of twelve black males, only three of whom wore their hair in dreadlocks. The only two men who had beards, mustaches and dreadlocks were the defendant and Crosswell. About two and one-half months after the incident, Hutchinson and Smith chose the photographs of the defendant and Crosswell as those of their assailants. Hester was able to identify only the defendant from the photographic array. ⁷ Each identification was made in the absence of the other witnesses, and none were told whether the others had selected any photograph from the array.

Before trial, the defendant moved to suppress the identifications made from the photographic array and any subsequent in-court identifications. After a hearing the trial court denied the motion, finding that, although the identification procedure used was unnecessarily suggestive in that only three individuals, two of them the defendants, could reasonably be said to fit the description given by the victims, the identifications were nevertheless reliable under the totality of the circumstances. The defendant took exception to the court's ruling.

To determine whether a pretrial identification procedure, such as the photographic array in this case, violated a defendant's due process rights, "the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the 'totality of the circumstances.' " State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). At issue in this case is the second prong of the above test, since the state has not challenged the trial court's finding with respect to the first prong, that the photographic array was unnecessarily suggestive. To determine whether an identification resulting from an unduly suggestive procedure is nevertheless reliable, a court must weigh the corrupting effect of the suggestive procedure in light of 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." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); State v. Ramsundar, 204 Conn. 4, 10-11, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S.Ct. 348, 98 L.Ed.2d 374 (1987).

Because the Manson reliability inquiry contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals " 'clear and manifest error.' " State v. Mitchell, 204 Conn. 187, 203, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S.Ct. 293, 98 L.Ed.2d 252 (1987). Because the issue of the reliability of an identification involves the constitutional rights of an accused, we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court's ultimate inference of reliability was reasonable. State v. Gordon, 185 Conn. 402, 416, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982); State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S.Ct. 3496, 73 L.Ed.2d 1375 (1982); see Culombe v. Connecticut, 367 U.S. 568, 605, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961).

We turn to a review of the record to determine whether the trial court's findings are adequately supported. In deciding that the...