State v. King

• Decision Date: 06 September 1994
• Docket Number: No. 12363,12363
• Citation: 647 A.2d 25,35 Conn.App. 781
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Adrian KING.

Page 25

647 A.2d 25

35 Conn.App. 781

STATE of Connecticut v. Adrian KING.

No. 12363.

Appellate Court of Connecticut.

Argued June 6, 1994.

Decided Sept. 6, 1994.

Marilyn B. Fagelson, Sp. Public Defender, for appellant (defendant).

Jacqueline J. Footman, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and James Clark, Asst. State's Atty., for appellee (State).

Before EDWARD Y. O'CONNELL, SCHALLER and SPEAR, JJ.

EDWARD Y. O'CONNELL, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of four counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), one count of robbery in the first degree in violation of General Statutes §§ 53a-134(a)(4) and 53a-8, and one count of criminal possession of a firearm in violation of General Statutes § 53a-217. ¹ Thedefendant claims that the trial court (1) improperly denied his motion to suppress evidence, (2) improperly denied his motion to sever the cases, and (3) failed to instruct the jury, sua sponte, to give special scrutiny to an accomplice's testimony. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was charged with a series of crimes in New Haven that took place over a six day period. The first crime occurred on January 16, 1992, in a parking lot behind 310 Whitney Avenue. As Mathilde Gontarski was removing snow from the roof of her white Pontiac Sunbird, the defendant came up behind her and demanded that she give him the car keys. Gontarski initially refused, attempted to spray mace in the defendant's face and scuffled with him. Gontarski was thrown to the ground, and the defendant grabbed her purse and stole her car.

Two days later, January 18, at approximately 1 p.m., the defendant entered Herzyk's Package Store in New Haven and requested a bottle of beer from the store clerk, Maria Lebiedz. Lebiedz brought the beer to the counter and the defendant pointed a gun at her face. Lebiedz began taking money out of the register and giving it to the defendant, while pleading for her life. After receiving the money, the defendant walked backwards out of the store and was seen by Lebiedz entering a white Pontiac Sunbird.

Eight hours later, the defendant entered the Long Wharf Mobil Station in New Haven and after purchasing a pack of gum, produced a gun and instructed the clerk, Michael Cohen, to keep his head down, not to speak and to hand over the money in the register. Cohen did as he was told and saw the defendant drive off in a white Pontiac Sunbird.

On January 20, 1992, the defendant and his girlfriend, Staci Byrd, were riding in Byrd's roommate's car when they stopped at the Chapel Street Ice Cream Cafe. The defendant handed Byrd a gun and ordered her to rob the store. Byrd entered the store, asked an employee to get the manager and, with the gun in her hand, ordered the manager, Garnett Wells, to hand over the money in the register. Wells did so. The defendant waited outside and, when Byrd returned to the car, they drove away in what Wells identified as a white, two door car with "HER" as the last letters on the license plate.

The following day the defendant entered the Foxon Sunoco Station in New Haven at approximately 7:40 a.m. to purchase several items, including a bottle of orange juice. When the defendant paid the attendant, Gary Smith, the defendant stated that he wanted "all of it." Smith handed the defendant the entire cash drawer. Fingerprints lifted from the orange juice bottle were identified as the defendant's.

At the time of the defendant's arrest, the police recovered a handgun from the inside pocket of a jacket owned by the defendant. The defendant stipulated that he had previously been convicted of a class B felony. Additional facts are included as necessary in our analysis of the individual claims.

I

Prior to trial, the defendant moved to suppress identifications made by Gontarski, Lebiedz and Cohen on the grounds that they violated his federal and state constitutional rights. Specifically, the defendant claims that the identification procedures were impermissibly suggestive and that the identifications were unreliable. ² See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); State v. Payne, 219 Conn. 93, 108, 591 A.2d 1246 (1991); State v. Pollitt, 205 Conn. 132, 164-65, 531 A.2d 125 (1987).

The defendant challenged the identification procedure that took place on January 24, 1992, when Detective Brian Norwood of the New Haven police department drove Gontarski, Lebiedz and Cohen to the New Haven Superior Court. Norwood told the victims that they were being brought to an arraignment proceeding in order to determine whether each could recognize the person who had robbed him or her. There was some discussion between the victims before and after entering the courtroom. Norwood brought the three victims into the back of the courtroom where they sat together and watched the arraignment proceedings for approximately fifteen minutes. After each victim notified Norwood that he or she had made an identification, Norwood escorted them out of the courtroom.

A defendant's due process rights are violated when an identification procedure gives "rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). When a defendant moves to suppress identification evidence, he bears the initial burden of proving that the identification resulted from an unconstitutional procedure. State v. Payne, supra, 219 Conn. at 106, 591 A.2d 1246. "In order to establish that a pretrial identification procedure has violated a defendant's constitutional right to due process, the defendant must prove (1) that the identification procedure was unnecessarily suggestive and (2) that the resulting identification was not reliable under the totality of the circumstances." State v. Hunt, 10 Conn.App. 404, 407, 523 A.2d 514 (1987). "Whether such an identification procedure is unnecessarily suggestive, depends on the facts and circumstances of each case." State v. Arroyo, 13 Conn.App. 687, 690, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988).

Although our Supreme Court has stated that arraignment identifications may be "suggestive"; State v. Ledbetter, 185 Conn. 607, 613, 441 A.2d 595 (1981); it does not necessarily follow that such a procedure is "impermissibly suggestive." See State v. Hinton, 196 Conn. 289, 295, 493 A.2d 837 (1985). The arraignment identification procedure here was nearly identical to the procedure utilized in State v. Payne, supra, 219 Conn. at 105, 591 A.2d 1246, when two witnesses were brought to an arraignment for possible identification of a suspect.

Here, as in Payne, the victims entered the arraignment courtroom in order to make a possible identification. At no time did Norwood describe the defendant or suggest who or where he was. Although there was some variation in the victims' testimony regarding the number of arraignees involved and the manner in which the arraignees were brought into the courtroom, all agreed that a significant number of them were black, as is the defendant. Moreover, at no time could the victims hear the names of those being arraigned or the crimes with which each arraignee was being charged. None of the victims was aware of the identifications made by either of the other victims until after they had left the courtroom. The victims then discussed the person whom they had identified, in each case, the defendant.

The defendant also argues that the identification procedure was impermissibly suggestive because the victims conversed before identifying the defendant in the arraignment courtroom. We are not persuaded. Detective Norwood testified that the victims were left alone together and they may have discussed the perpetrator's description. The testimony of the three victims regarding the nature of the preidentification conversations varied considerably, however. Gontarski testified that there was no such discussion. Lebiedz stated at the suppression hearing that the three had discussed the crimes committed against each of them in addition to other details concerning the perpetrator's race, height and build. At trial, however, Lebiedz stated that any discussion concerning the specific features of the perpetrator took place after each of the victims had identified the defendant in the arraignment courtroom. Cohen recalled that some discussion took place before the arraignment but could not remember any of the details. Although we recognize that Norwood's failure to sequester the victims permitted them to converse about the defendant, the record is, at best, confusing as to the nature and extent of those conversations. There is no evidence suggesting that the conversations helped any of the victims distinguish the defendant from the other arraignees. Therefore, we cannot conclude that the conversations unlawfully tainted any of the victims' identifications. See State v. Boscarino, 204 Conn. 714, 731-32, 529 A.2d 1260 (1987) (prelineup conversations did not render the subsequent identification procedure impermissibly suggestive).

We cannot say that the identifications here were impermissibly suggestive and therefore constitutionally infirm. Even if we were to assume that the procedures were unnecessarily suggestive, however, that would not be dispositive of the claim. We would then proceed to determine whether the identifications were reliable under the totality of the circumstances. "In determining whether an identification is reliable in the totality of circumstances, the corruptive influence of the suggestive procedure is weighed against 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...