State v. McClendon, (SC 15817)

• Court: Supreme Court of Connecticut
• Writing for the Court: MCDONALD, J.
• Citation: 730 A.2d 1107,248 Conn. 572
• Parties: STATE OF CONNECTICUT v. CHARLES MCCLENDON
• Docket Number: (SC 15817)
• Decision Date: 11 May 1999

248 Conn. 572
730 A.2d 1107

STATE OF CONNECTICUT
v.
CHARLES MCCLENDON

(SC 15817)

Supreme Court of Connecticut.

Argued May 27, 1998.

Officially released May 11, 1999.

Callahan, C. J., and Borden, Berdon, Norcott and McDonald, Js.

Elizabeth M. Inkster, assistant public defender, with whom was Joseph G. Bruckmann, public defender, for the appellant (defendant).

Christopher T. Godialis, 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 the appellee (state).

Opinion

MCDONALD, J.

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, the defendant claims that the Appellate Court improperly affirmed the trial court's rulings (1) denying his motion to suppress certain identification evidence, (2) refusing to admit into evidence a police report, and (3) excluding the testimony of a defense expert on the subject of eyewitness identification. We affirm the judgment of the Appellate 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 eyeglasses and a blue shirt with the

248 Conn. 575

sleeves rolled up. She handed the man an application. At that time, Dennis Shortell, the owner of C & K, asked Hale to place a telephone call. After she had 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 the same voice as the man to whom she had given the job application. As Hale emptied her wallet into the robber's bag, Grayland Cannon, another employee of C & K, walked in. The robber demanded money from Cannon and, when Cannon told the robber that he did not have any money, the robber shot him. The robber then went to Shortell's office, demanded money, shot Shortell and fled. Both Cannon and Shortell died from their gunshot wounds

At approximately 4:45 p.m. that same day, from his residence in the vicinity of C & K, Hector Colon heard "three or four" gunshots and subsequently saw a black male "walking real fast ... looking backwards." The man was wearing a blue shirt with "no sleeves" and carrying a paper bag under his arm. Around that same time, also in the vicinity of C & K, Stephen Tinker observed a man wearing gold-rimmed tinted eyeglasses 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 they saw that day as the defendant from an array of photographs and also identified him at trial.

Within minutes of the shooting, the police arrived, and Hale gave them a description of the job applicant. When police detectives arrived at approximately 5 p.m., Hale gave an even more detailed description. Hale described the applicant as a black man, twenty to twenty-five years old, medium complexion, short cropped hair, about five and one-half feet tall, and about 150 pounds. She described him as wearing a light blue dress shirt with the sleeves rolled up and most of the

248 Conn. 576

buttons undone. His shirt was untucked. He had a moustache and was wearing gold-rimmed eyeglasses with a yellow tint. Hale gave the police a sworn statement at the police station at approximately 8 p.m. that night. While Hale was at the police station, she also assisted the police in developing a composite sketch of the robber

In the days immediately following the C & K robbery, Hale was also shown three photographic arrays. On August 12, she was shown an array of photographs of black men with eyeglasses that did not include a photograph of the defendant, and she did not make an identification. On August 14, she was shown two arrays, both of which included a photograph of the defendant. Hale could not identify any one photograph as that of the job applicant and she told the police that she needed to see the job applicant in eyeglasses in order to identify him.

"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 Cannon and injured a victim in another uncharged robbery] were fired from [the gun found in the defendant's apartment] and no other revolver.'" State v. McClendon, 45 Conn. App. 658, 661, 697 A.2d 1143 (1997).

In September, 1989, two years after the C & K robbery, the defendant was incarcerated on unrelated robbery charges. During those two years, Hale was shown, on seven or eight occasions, several arrays that included a photograph of the defendant, but she could not identify the defendant as the man in the gold-rimmed tinted

248 Conn. 577

eyeglasses who had asked her for the job application. In May, 1989, Hale was contacted by Detective Ronald Faggaini of the Hartford police department, who recently had taken over the investigation of the C & K robbery. Hale told him that since she had not seen the robber's face, she could not identify the robber. She also told Faggaini that she recognized the robber's arm as that of a man to whom she had given a job application minutes before the robbery. Shortly thereafter, she told a state's attorney that she might be able to recognize the robber's voice if she heard it again. The police then secured a search and seizure warrant authorizing the defendant to be placed in a lineup and to give a voice sample

On September 15, 1989, Hale viewed a lineup composed of six black men. She also heard the men speak. From the lineup and the voice sample, Hale identified the defendant as the gunman. The defendant subsequently was charged with and found guilty of the C & K robberies and murders.

The defendant filed a pretrial motion to suppress the photographs, the tape or video recordings and any identifications of him that had been made from the lineup. The trial court denied this motion. At trial, Hale identified the defendant as the perpetrator of the crimes. The defendant sought to introduce expert testimony from a psychologist on eyewitness identification, and the trial court excluded the testimony of the expert. The trial court also excluded a police report containing a record of Hale's conversation with Faggaini on May 18, 1989.

The defendant appealed from the trial court's judgment to the Appellate Court, which affirmed the judgment of the trial court. We granted the defendant's petition for certification pertaining to the sufficiency

248 Conn. 578

of the search and seizure warrant application, the exclusion of the testimony of the expert witness on eyewitness identification, and the exclusion of the police report.¹

I

The defendant first claims that the trial court improperly denied his motions to suppress Hale's identification of him as the perpetrator of the crimes because there was no probable cause for a search and seizure warrant to place him in a lineup and to take voice samples.²

The defendant argues that the warrant authorizing the lineup and voice sample violates article first, § 9, of the Connecticut constitution. He claims that the lineup was not "clearly warranted by law" because the affidavit in support of the warrant failed to establish probable cause. The defendant argues that the facts relied upon to establish probable cause are in fact totally unrelated to the C & K murders and robbery. We disagree.

The affidavit accompanying the application for the warrant contained the following information. Hale gave a detailed description of the man to whom she had given an employment application minutes before the shootings on August 11, 1987, and of the handgun that

248 Conn. 579

was used. She also assisted the police in preparing a composite drawing of the perpetrator. This composite was shown to Cheryl Spillane, the victim of an unrelated robbery on August 7, 1987, at Spillane's Service Station in Hartford. Spillane stated that the person who had robbed her resembled the composite drawing and that he had a scar on his left cheek. Another eyewitness to that robbery, Armando Rodriguez, identified the defendant from an array of photographs as being the perpetrator of that robbery. Hale was shown photographic arrays that included a photograph of the defendant, but she was unable to identify the man to whom she had given the employment application and who had held her at gunpoint. Hale stated that she could not make the identification without seeing the man wearing eyeglasses, as the C & K robber had worn. Two years after the robbery, while talking to the state's attorney, Hale stated that if she heard the same voice again she might be able to identify the speaker as the robber. 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, who found that probable cause existed to place the defendant in a lineup and to take his voice sample

"Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to...