State v. McClendon

• Decision Date: 15 July 1997
• Docket Number: No. 15529,15529
• Citation: 697 A.2d 1143,45 Conn.App. 658
• Parties: STATE of Connecticut v. Charles McCLENDON.
• Court: Connecticut Court of Appeals

Page 1143

697 A.2d 1143

45 Conn.App. 658

STATE of Connecticut v. Charles McCLENDON.

No. 15529.

Appellate Court of Connecticut.

Argued March 17, 1997.

Decided July 15, 1997.

Elizabeth M. Inkster, Assistant Public Defender, with whom was Joseph G. Bruckmann, Public Defender, for appellant (defendant).

Christopher Godialis, Deputy Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and John H. Malone Assistant State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, FOTI and FRANCIS X. HENNESSY, JJ.

FRANCIS X. HENNESSY, Judge.

The defendant, Charles McClendon, was convicted after a jury trial of two counts of felony murder in violation of General Statutes § 53a-54c, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a)(2) and 53a-134 (a)(2) and (4), and two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a)(1), (2) and (4). On appeal, ¹ the defendant claims that the trial court improperly (1) denied his motions to suppress identification, (2) excluded the testimony of a defense expert on the subject of eyewitness identification, (3) suppressed a certain police report, (4) admitted evidence of other crime and (5) concluded that the state presented sufficient evidence of the identity of the defendant as the perpetrator of the crimes for which he was found guilty. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 4:40 p.m. on August 11, 1987, Darlene Hale was at her desk at C & K Moving Company (C & K) at 211 Walnut Street in Hartford. A man came in and requested a job application. He was five feet six or seven inches tall and weighed between 150 and 165 pounds. He was black and had short dark hair, a moustache and a pockmarked face. He was wearing gold-rimmed tinted glasses and a blue shirt with the sleeves rolled up. She handed the man an application. At that time, Dennis Shortell, the owner of the company, asked Hale to place a telephone call. After she placed the call, a man came up behind her, put a silver and black gun to her head and demanded money. Hale noticed that the robber had the same rolled up blue shirt sleeves and voice as the man to whom she had given the application. As Hale emptied her wallet into the robber's bag, Grayland Cannon, another employee of the company, walked in. The robber demanded money from Cannon and, when Cannon told the robber that he did not have any, the robber shot him. The robber then went to Shortell's office, demanded money, shot Shortell and fled. Both Cannon and Shortell died of their wounds.

At around 4:45 p.m. the same day, from his residence in the vicinity of C & K, Hector Colon heard "three or four" gun shots and subsequently saw a black male "walking real fast ... looking backwards." He was wearing a blue shirt with "no sleeves" and carrying a paper bag under his arm. Around the same time, also in the vicinity of C & K, Stephen Tinker observed a man wearing gold-rimmed tinted glasses and a blue and white striped shirt. Shirley Lassiter also saw a man wearing a "blue short sleeve shirt" and walking fast. Both Tinker and Lassiter later identified the man as the defendant from an array of photographs and also identified him at trial.

On August 13, 1987, the police executed a search and seizure warrant on the defendant's residence at 18-20 Edgewood Street in Hartford. In the apartment, the police found a twenty-two caliber handgun with a silver cylinder and white plastic grips. James McDonald, a forensic firearms examiner, testified at trial that in his opinion "all three of those [bullets that killed Shortell and Canon and injured a victim in another uncharged robbery] were fired from [the gun found in the defendant's apartment] and no other revolver." On September 15, 1989, Hale viewed a lineup composed of six black males. She also heard the men speak. From the lineup and the voice sample, Hale identified the defendant as the gunman. The defendant was subsequently charged with and found guilty of the C & K robberies and murders. This appeal followed.

I

The defendant first claims that the trial court improperly denied his motions to suppress Hale's identification of him on two grounds: (1) there was no probable cause to issue a search and seizure warrant to compel his placement in a lineup; and (2) the lineup was unnecessarily suggestive resulting in an unreliable identification.

The following additional facts are necessary for the resolution of this issue. In September, 1989, two years after the incident at the C & K office, the defendant was incarcerated on unrelated robbery charges. During those two years, Hale was shown, on several occasions, arrays that included a photograph of the defendant, but she could not identify the defendant as the man in gold-rimmed tinted glasses who had asked for the job application. In 1989, Hale was contacted by Detective Ronald Faggaini, of the Hartford police who had recently taken over the investigation. Hale told him that she could not make a positive identification of the shooter without seeing the person wearing eyeglasses. She also told a state's attorney that she might be able to recognize the robber's voice if she heard it again. The police secured a search and seizure warrant authorizing the defendant to be placed in a lineup and to give a voice sample. ² After viewing the lineup and listening to the voice samples, Hale positively identified the defendant as the robber.

A

The defendant argues that the warrant authorizing the lineup and voice sample violates article first, § 9, of the Connecticut constitution. ³ He claims that the lineup was not "clearly warranted by law" because the warrant failed to establish probable cause. The defendant avers that "[t]he 'nexus' required between the items to be seized [the defendant's person and voice sample] and the criminal behavior was clearly not established under the facts presented here." See State v. Acquin, 177 Conn. 352, 355, 416 A.2d 1209 (1979). We disagree.

The affidavit accompanying the request for the warrant contained the following information. Hale gave a detailed description of the person to whom she had given an employment application minutes before the shootings and of the handgun he used. She further assisted the police in preparing a composite drawing of the perpetrator. This composite was shown to the victim of an unrelated robbery at Spillane's Service Station who stated that the person who had robbed her resembled the composite drawing. Another witness to the Spillane's robbery identified the defendant from an array of photographs as being the perpetrator. Hale was shown photograph arrays that included a picture of the defendant but was unable to identify the person to whom she gave the employment application and who held her at gunpoint. Hale stated that she could not make the identification without seeing the person wearing eyeglasses. Two years later, while talking to the Hartford county state's attorney, Hale stated that if she heard the same voice again she might be able to identify the speaker as the shooter. The affidavit concluded by stating that a lineup viewing and a voice sample of the defendant heard by Hale may produce a positive identification. This affidavit was presented to a judge of the Superior Court. ⁴ The court found that, based on the facts contained in the affidavit, probable cause existed for the transportation of the defendant from his place of incarceration for purposes of a lineup and voice sample.

"Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.... Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity; and (2) there is probable cause to believe that the items named will be found in the place to be searched." (Citations omitted; internal quotation marks omitted.) State v. Barton, 219 Conn. 529, 548, 594 A.2d 917 (1991).

"In determining whether the warrant was based upon probable cause, we may consider only the information that was actually before the issuing judge at the time he or she signed the warrant, and the reasonable inferences to be drawn therefrom.... We view that information, however, in the light most favorable to the issuing judge's determination of probable cause, and '[i]n a doubtful or marginal case ... our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate's determination.' " (Citation omitted.) State v. Duntz, 223 Conn. 207, 216, 613 A.2d 224 (1992).

In this case, we conclude that the affidavit presented a substantial factual basis to support the court's conclusion that probable cause for the lineup and the voice sample existed. The police officer affiants attested that Hale gave a detailed description of the person who requested the employment application and that she had the opportunity to see that person clearly. On the bases of Hale's description of the gunman and the identification of the composite as the defendant by another robbery victim, and justifying Hale's inability to identify the gunman from photograph arrays because the photographs did not show the potential perpetrators wearing sunglasses, the issuing judge could reasonably have inferred that probable cause existed.

B

The defendant also claims that the identification procedure was unnecessarily suggestive and unreliable under the totality of circumstances. He argues that the lineup was invalid because Hale was shown several photograph arrays containing the defendant's photograph over the prior two years and, therefore, the defendant was the only person in the lineup whom Hale had seen before. He further...