State v. Hudson

• Decision Date: 24 May 1988
• Docket Number: No. 5781,5781
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Brian HUDSON.

Page 534

541 A.2d 534

14 Conn.App. 463

STATE of Connecticut v. Brian HUDSON.

No. 5781.

Appellate Court of Connecticut.

Argued Jan. 7, 1988.

Decided May 24, 1988.

Monte P. Radler, Asst. Public Defender, for appellant (defendant).

James A. Killen, Deputy Asst. State's Atty., with whom, on the brief, was Eugene Callahan, State's Atty., for appellee (State).

Before BORDEN, EDWARD Y. O'CONNELL and STOUGHTON, JJ.

EDWARD Y. O'CONNELL, Judge.

The defendant appeals from the judgment of conviction of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), and assault in the second degree in violation of General Statutes § 53a-60(a)(2). The defendant claims that the trial court erred (1) in denying the defendant's motion to suppress pretrial and in-court identifications, (2) in directing the jury to "observe the courtroom" upon completion of the in-court identification, (3) in giving an adverse inference instruction regarding the defendant's failure to call an alibi witness, and (4) in refusing defense counsel's request to allow the defendant to stand at the jury box during summation. The defendant also claims that the cumulative impact of the claimed errors deprived the defendant of a fair trial. We find no error.

The jury reasonably could have found the following facts. Shortly after 8 p.m. on January 12, 1985, the victim parked her car near an office building in Stamford, intending to visit a friend who was at work within the building. She attempted to enter the building but the door was locked, and her attempts to call to her friend were of no avail. Upon returning to her car, she noticed a man and woman standing near the only other automobile on the block, approximately fifty feet away. As she was about to enter her car, she felt a strong tug at her pocketbook which was slung over her left shoulder. Turning, she saw that a black woman, one of the two people she had noticed at the nearby automobile, was attempting to seize the pocketbook. A tug-of-war ensued until the defendant, a black male, approached brandishing a pistol and commanded, "Give her the purse or I'll shoot you." The victim began screaming, and after disregarding a second warning from the defendant she was struck on the head with the gun. As the victim brought her hands up to protect her head, she loosened her grip on the purse and also upon a brown paper bag she was carrying. The female assailant, later identified as Sheila Hudson, the defendant's sister, yanked the purse from the victim's arm, and both the defendant and his sister backed away, momentarily stopping to view the contents of the paper bag now lying in the street. The two attackers then turned and ran and, although the victim attempted to pursue them, the defendant and his sister eluded her. One week after the assault, the victim selected the defendant's photograph from a photo array at the Stamford police station. She also made an in-court identification of the defendant as her male attacker. She later identified Sheila Hudson as her female assailant. Sheila Hudson's conviction is the subject of the appeal in State v. Hudson, 14 Conn.App. 472, 541 A.2d 539 (1988).

I

The defendant first claims the trial court erred in failing to suppress the victim's pretrial and in-court identifications of the defendant as one of her assailants.

"The trial court held an evidentiary hearing regarding the identifications and specifically found that none of them was the result of an impermissibly suggestive procedure, and that they were reliable. See, e.g., State v. Vilhotti, 11 Conn.App. 709, 713-18, 529 A.2d 235 (1987). It would serve no useful purpose to recite those findings here. We have fully reviewed the record, and we conclude that those findings are amply supported by the evidence. State v. Mitchell, 204 Conn. 187, 203, 527 A.2d 1168, cert. denied, --- U.S. ----, 108 S.Ct. 293, 98 L.Ed.2d 252 (1987)." State v. Daniels, 13 Conn.App. 133, 135, 534 A.2d 1253 (1987).

II

The defendant's next claim of error concerns the in-court identification of the defendant as one of the victim's assailants. The victim chose the defendant and his sister from a group of six black males and six black females, seated in a row in the courtroom. The identification occurred outside the presence of the jury, and prior to their being sworn. After the jury was brought in and sworn, the court instructed the jurors to "take a few moments and observe everyone in the courtroom." The jury was then excused without comment concerning the identification. The defendant argues that this procedure "impermissibly bolstered" the state's evidence, because the jury was able to view the other subjects of the "lineup" after the victim had identified both the defendant and his sister as her assailants out of the jury's presence. The defendant's argument is meritless. "The manner in which in-court identifications are conducted is not of constitutional magnitude but rests within the sound discretion of the trial court." State v. Smith, 200 Conn. 465, 470, 512 A.2d 189 (1986); State v. Cubano, 9 Conn.App. 548, 555, 520 A.2d 250 (1987). The defendant had requested that an in-court identification occur outside of the jury's presence, prior to trial. The record indicates that the trial court allowed the jury to observe the people seated in the courtroom so that the twelve people in the lineup were not required to remain in court throughout the suppression hearing which preceded the trial.

The action of the trial court merely ensured that the jury had the benefit of the most accurate picture of the circumstances of the in-court identification, to prevent either party from exploiting the jury's absence from the procedure. We note further, that the defendant does not raise on appeal the admission into evidence of photographs of the lineup taken by the state's attorney. "The innate weakness in any in-court testimonial identification is grounds for assailing its weight rather than its admissibility." State v. Smith, supra, 200 Conn. at 470, 512 A.2d 189. The court neither bolstered the state's evidence nor abused its discretion in instructing the jury to "observe everyone in the courtroom."

III

The defendant next claims that it was error for the trial court to instruct the jury that it could draw an adverse inference from the defendant's failure to call certain alibi witnesses. Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). We disagree.

After consideration of each party's request to charge, the trial court rejected the state's request to give a Secondino instruction concerning the defendant's failure to produce two alibi witnesses. The court denied the request on the grounds that the state had not established the availability of the witnesses. In response to the denial, the state requested that the court take judicial notice of the fact that one of the alibi witnesses, Pearl Hudson, the defendant's mother, was present in the courtroom and obviously available to testify. The defendant moved to reopen its case to offer Pearl Hudson's testimony; the trial court granted the defendant's motion and Pearl Hudson testified.

The defendant next presented the testimony of Vasco Willis, an investigator with the public defender's office. Willis testified that he was unable to locate the second alibi witness, the defendant's brother, Lorenzo Hudson. Willis also related that the defendant's mother told him that Lorenzo was incarcerated, but that he ascertained that Lorenzo Hudson was not incarcerated at the Bridgeport Correctional Center and that he did not have a telephone listing in New Haven. This evidence was then presented to the jury. The court subsequently delivered a "missing witness" charge regarding Lorenzo Hudson.

" 'The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause.' " State v. Ruiz, 202 Conn. 316, 324, 521 A.2d 1025 (1987), quoting Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928). "There are two requirements for the operation of the [Secondino ] rule: The witness must be available, and he must be a witness whom the party would naturally produce.' " State v. Howard, 12 Conn.App. 655, 657, 533 A.2d 890 (1987). ¹ If the evidence presented is sufficient to support a finding that a missing witness was available to the defendant, the court's charge was properly given. State v. Howard, supra, 657-58, 533 A.2d 890.

The standard which determines a witness' availability to testify is "whether there was sufficient evidence to support a finding by the jury that the missing witness was available to the defendant." State v. Daniels, 180 Conn. 101, 110, 429 A.2d 813 (1980). In Daniels, the state's attorney questioned the defendant about a potential witness' whereabouts and elicited the response, "She's home, I guess." Id. Our Supreme Court held that "[t]his testimony provided the jury with sufficient evidence to support a finding by it that [the potential witness] was available to the defendant as a witness at the time of trial." Id.

In the present case, the defendant's first alibi witness, Pearl Hudson, testified on cross-examination that Lorenzo Hudson resided in New Haven at the time of trial. ² While this evidence is by no means conclusive on the question of Lorenzo Hudson's availability, under the standard set in State v. Daniels, supra, we conclude that the evidence was sufficient to support a finding by the jury that the witness was available.

We note that despite the defendant's argument to the contrary, the testimony of the public defender's investigator, that he could not locate Lorenzo Hudson, is of no consequence. The investigator testified that he did nothing more in New Haven than check directory assistance for Lorenzo Hudson's telephone listing. Pearl Hudson testified, however, that Lorenzo did...