State v. Johnson

• Decision Date: 29 July 2014
• Docket Number: SC 19102
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. NATHAN S. JOHNSON

STATE OF CONNECTICUT v. NATHAN S. JOHNSON

SC 19102

Supreme Court of Connecticut

Argued December 11, 2013

July 29, 2014

Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa and Vertefeuille, Js.

Lisa J. Steele, assigned counsel, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Eugene Calistro, senior assistant state's attorney, for the appellee (state).

Charles D. Ray filed a brief for the Innocence Project as amicus curiae.

Opinion

VERTEFEUILLE, J. The primary issue that we must resolve in this appeal is whether the due process clauses of the Connecticut constitution provide protection against allegedly unduly suggestive eyewitness identification procedures undertaken by a private actor. The defendant, Nathan S. Johnson, was charged with various criminal offenses in connection with the shooting of the victim, Johnnie Jones. Before trial, the defendant filed a motion to suppress the victim's identification of him as the perpetrator on the ground that it was the result of unnecessarily suggestive police procedures. The trial court denied the motion. The jury ultimately returned a verdict of guilty on charges of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (1), and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a). The defendant also was found guilty by the court, B. Fischer, J., of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1),¹ and the trial court thereafter rendered judgment of guilty in accordance with the verdict and the court's finding. The defendant appeals from the judgment of conviction claiming for the first time that the victim's conduct in identifying the defendant as the perpetrator was unduly suggestive and that unduly suggestive conduct by a private actor violates the due process provisions of the state constitution even in the absence of any improper state action.² We conclude that eyewitness identifications that are not tainted by any unduly suggestive state action do not implicate the due process provisions of the state constitution unless, as with any other form of evidence, the identification was so extremely unreliable that its admission deprived the defendant of his right to a fair trial.

The record reveals the following facts that are either undisputed or were expressly found by the trial court. On December 30, 2009, the victim, who was then twenty-seven years old, left his job at the Clarion Hotel on Whitney Avenue in New Haven at approximately 3:30 p.m., and took a bus to his residence at 50 Gilbert Street. After taking a nap, he left his residence and walked to a friend's house on Albert Street, a thirty to forty minute walk. Upon discovering that his friend was not at home, the victim walked to his father's house at 15 Adam Clayton Powell Place, a five to seven minute walk. He stayed there for approximately three to four hours, during which time he helped his father with his computer. He then went to the China Star restaurant on Dixwell Avenue, where he bought some cigarettes. As he was leaving the restaurant, he saw a group of men, including the defendant. The victim had seen the defendant beforewhen they had played "Pop Warner" football as teenagers and, more recently, in a store and in a bar in New Haven. The victim had exchanged handshakes with the defendant twice within the two months preceding December 30, 2009. The victim did not know the defendant's name. When the victim saw the defendant as he was leaving the China Star restaurant, they just looked at each other. The victim had no quarrel with the defendant.

After leaving the China Star restaurant, the victim went to a convenience store on Dixwell Avenue to get a light for his cigarettes and to purchase lottery tickets. As he was leaving the store, he saw some friends who asked him if he would like something to drink. The victim had two beers and two shots of gin. At some point, the victim's friends started smoking embalming fluid, and he decided to walk home. As he walked through the back of the plaza where the convenience store was located, two men jumped out and demanded his money. One of the men started patting him down and taking his belongings, including $5, a cell phone and keys. The person who was patting him down was wearing a purple "skully"—an "open-faced mask" that concealed only his hair and ears. He was also holding a dull silver revolver.

Although the lighting was dim, the victim was able to see the facial features of the person who was patting him down and to recognize him as the defendant. He was also able to see the complexion and the eyes of the other person, who was wearing a hat and a black scarf. The victim told the defendant that he knew him and asked him what he was doing. The defendant then said either "shoot that nigger," "shoot him," or "I'm gonna shoot him," at which point the victim ran. As he ran, he heard two shots and felt a burning sensation in his back. The victim then heard two more shots and fell to the ground.

After approximately fifteen minutes, the victim saw a man walking some dogs and he asked the man to call an ambulance. The man called 911 on his cell phone and put the phone on speaker mode so that the victim could talk to the dispatcher. The victim told the dispatcher that he had been assaulted by two African-American males but, when asked if he could identify his attackers, the victim responded that he could not. The victim testified at the suppression hearing that he denied having recognized the defendant because "[w]here I'm from you don't tell. You don't tell."

The victim was taken to Yale-New Haven Hospital, where he was interviewed by Craig Dixon, a detective with the New Haven Police Department (police department). The victim did not tell Dixon that he had recognized the defendant. Dixon interviewed the victim again on January 6, 2010, at which point the victim told Dixon that he had recognized one of the attackers as someonewith whom he had played Pop Warner football. The victim testified that he was willing to identify his assailant at that point because, before the interview, he had asked Dixon whether the police would have been able to find out who had shot him if he had died, and Dixon had responded, "no." The victim also testified that he had talked to his family, friends and physicians, who had urged him to tell the police if he knew who had robbed him.

At some point prior to February 20, 2009, the victim decided to search the Internet for photographs of the person who he believed had shot him. He found a photograph of that person and four other persons on the social networking site called My Space and printed out the page on which it was posted. On February 20, 2009, Dixon again visited the victim, who was then being treated at Gaylord Hospital in Wallingford, and the victim gave him the printout of the My Space page containing the photograph of the person he believed to be his assailant. Thereafter, Dixon logged into the My Space site with the police department's computer, located the page that the victim had printed and printed a larger color copy of the photograph. In addition, because Dixon had noticed that a comment, "Free my cousin Nate (#27),"³ had been posted in the comment section of the My Space printout, he performed an "in-house check" of all males with the name Nate and Nathan.⁴ He found a photograph of the defendant that resembled the person on the My Space printout.

Dixon then prepared a photographic array containing similarly sized and formatted photographs of eight young, African-American males wearing black shirts, including the defendant. On March 10, 2010, Dixon presented the photographic array to the victim, along with an instruction form indicating that the suspect's photograph might not be included, which Dixon read aloud to the victim and asked the victim to read to himself.⁵ Dixon did not suggest that the victim pick any person out of the array, did not show the victim a separate photograph of the defendant, and did not suggest that a photograph of the victim's assailant was included in the array. The victim, without hesitation, identified the defendant from the array as the person who had shot him and with whom he had played Pop Warner football.

The defendant argued at the suppression hearing that the identification procedure was unduly suggestive because the photograph of the defendant that Dixon included in the photographic array was, according to defense counsel, the only photograph that looked similar to the person that the victim had identified as his assailant in the photograph from the My Space printout.⁶ In addition, defense counsel argued that the victim's identification of the defendant was unreliable because the victim had been drinking prior to the time of the robbery, the lighting was "dim" at the time of the rob-bery, the victim had not identified the defendant as his assailant immediately after the shooting, and the victim's descriptions of the shooter had varied. The trial court concluded that the police procedures had not been unduly suggestive and denied the defendant's motion to suppress. Thereafter, the defendant was tried and convicted of the previously set forth crimes. This appeal followed.⁷

On appeal, the defendant has effectively abandoned his claim that the photographic array was unduly suggestive. Instead, he claims for the first time that the victim's identification of the defendant as the shooter should have been suppressed because the victim's conduct was unduly suggestive. Specifically, the defendant claims that the identification should have been suppressed because the victim sought out a photograph of the...