State v. Morgan, (SC 17368).

• Citation: 877 A.2d 739,274 Conn. 790
• Decision Date: 02 August 2005
• Docket Number: (SC 17368).
• Court: Supreme Court of Connecticut
• Parties: STATE OF CONNECTICUT v. VERNAL MORGAN.

274 Conn. 790

877 A.2d 739

STATE OF CONNECTICUT v. VERNAL MORGAN.

(SC 17368).

Supreme Court of Connecticut.

Argued April 12 2005.

Officially released August 2, 2005.

Sullivan, C. J., and Borden, Norcott, Katz and Zarella, Js.

Jennifer C. Vickery, with whom, on the brief, was Damon A. R. Kirschbaum, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom, on the brief, was Scott Murphy, state's attorney, for the appellee (state).

Opinion

BORDEN, J.

The dispositive issue in this appeal¹ is whether there was sufficient evidence of the defendant's identity to support a jury verdict finding him guilty of robbery in the first degree in violation of General Statutes § 53a-134,² and conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48.³ Following a trial, the jury found the defendant guilty on both counts, and the trial court rendered judgment of conviction in accordance with the verdict. The defendant claims that the evidence was insufficient to establish, beyond a reasonable doubt, his identity as the gunman in the robbery in question. We conclude that the evidence was sufficient to support the defendant's conviction. Accordingly, we affirm the judgment of the trial court.

In connection with two separate incidents that occurred within seven weeks of each other, the defendant, Vernal Morgan, was charged in two cases with two counts of robbery in the first degree in violation of § 53a-134 (a) (4), and two counts of conspiracy to commit robbery in the first degree in violation of § 53a-48. The trial court consolidated the two cases. Counts one and two of the information related to an armed robbery that had taken place on May 29, 2001, at a Subway sandwich shop located at 589 Hartford Road in New Britain. Counts three and four of the information related to an armed robbery that had taken place on April 11, 2001, at a Blimpie's Sub Shop (Blimpie's) located at 1537 Stanley Street in New Britain. At the conclusion of the state's case, the defendant moved for judgment of acquittal with respect to counts three and four of the information based on the theory that there was not sufficient evidence introduced at trial to support a guilty verdict. The trial court denied this motion and allowed the case to proceed against the defendant with respect to all four counts of the information. The jury found the defendant guilty on all four counts, and the trial court subsequently rendered judgment of conviction against the defendant consistent with the jury's verdict.⁴ This appeal followed.

The defendant challenges his conviction on counts three and four of the information, in connection with the Blimpie's robbery, on the basis that there was insufficient evidence for the jury to conclude, beyond a reasonable doubt, that he was the gunman in the robbery in question.⁵ The jury reasonably could have found the following facts regarding the Blimpie's robbery. On April 11, 2001, Holly Broderick was working at Blimpie's located at 1537 Stanley Street in New Britain. At approximately 11 p.m., two men entered the store and demanded that Broderick give them the money in the cash register. One of the men was wearing a blue sweatshirt, black gloves, and large chunky black boots, and was carrying a handgun. Broderick was behind the counter at eye level with the door when she first saw the individuals. Broderick observed both men enter the store and was able to get a good look at their faces as they ran through the front door.⁶ In addition to noticing what the individuals were wearing and the fact that both men were black, she was able to observe some distinctive facial features of the individual carrying the handgun. In particular, as the individuals entered Blimpie's, Broderick noticed the shape of the gunman's mouth, the coloration of his lips, and the fact that he had very deep set eyes. Very shortly after the assailants entered Blimpie's, both individuals pulled down masks covering their faces.

Upon first seeing the individuals enter Blimpie's, Broderick recalled advice that she had received from her father about what to do in a situation where she may need to make a personal identification. Specifically, Broderick's father relayed advice from his father, a former police officer, who had always advised having a plan for such situations and focusing on physical characteristics that are not easily changed such as skin color, the size and shape of a person's nose, lip size, or the size and shape of an individual's ears and chin. These were the primary thoughts going through Broderick's mind as she observed the two individuals open the door to Blimpie's and run into the store.

Immediately after the individuals pulled down their masks, Broderick ran to the back room of the store to call the police by dialing 911. Upon being connected with a 911 operator, Broderick intended to place the receiver next to the television and videocassette recorder connected to the Blimpie's security surveillance system so that the operator could hear what was transpiring in the store and could dispatch officers to the scene. Before Broderick was able to complete this call, however, the gunman followed her into the back room and forced her to return to the main room where the cash register was located. The security videotape, along with still photographs converted from the videotape, were presented to the jury and were consistent with Broderick's initial description regarding the sequence of events that transpired once the individuals entered Blimpie's. In particular, once the armed assailant forced Broderick to return to the front of the store, he repeatedly threatened Broderick with his weapon and demanded that she open the store's cash register. Broderick opened the cash register, and the individual pointing his weapon at her, cleared out the till, and handed the money to the other assailant. At the time of the robbery, the cash register held in excess of $400 in cash. The gunman also repeatedly demanded that Broderick open the store's safe. Broderick told both individuals that only managers had access to the safe and that she could not open it, at which point the two men ran out of the store.

Shortly after the two assailants left Blimpie's with the money from the cash register, Broderick again called 911. Moments later, Officer Bryant Pearson of the New Britain police department arrived at the scene and took Broderick's written statement, in which she gave a description of the robbery and the two assailants. Subsequently, on two separate occasions, one shortly after the robbery and another on May 30, 2001, Broderick reported to the police station to review photographs in an attempt to identify the individuals who committed the robbery.

At the first meeting at the police station, Broderick reviewed hundreds of photographs of potential suspects, but did not identify any of them as the gunman. At her meeting on May 30, 2001, Broderick met with Detective Thomas Steck, who had prepared a standard photographic array of eight potential suspects of similar description for her review. Broderick identified the defendant as the individual who had threatened her at gunpoint and had demanded that she provide him with all of the money in the safe and cash register. The format of the photographic array was consistent with the police department's photographic identification procedures routinely used during the course of criminal investigations. Prior to these meetings, Broderick was not told that the police had a suspect in custody and she was not influenced in any way to identify a particular individual in the photographic array. To the contrary, Broderick was simply told that the officers had some additional photographs that they wanted her to view. Upon viewing the photographic array on May 30, 2001, Broderick immediately identified the defendant as the individual who had threatened her at gunpoint during the Blimpie's robbery. Broderick told Steck and later testified at trial that she was completely confident in her identification, citing, among other things, the distinctiveness of the coloration of the defendant's lips and the shape of his eyes.⁷ After identifying the defendant as the assailant on the basis of the photographic array, Broderick provided Steck with a statement to that effect. She also reviewed a photocopy of the photographic array and circled the defendant's photograph to signify her identification of him as the individual who had robbed her store at gunpoint.

The defendant claims that there was insufficient evidence to support his convictions in connection with the Blimpie's robbery. Specifically, the defendant argues that: (1) Broderick's identification of the defendant as the gunman in the robbery on the basis of the color and shape of his lips was "logically impossible" given the fact that the assailant's lips had been covered by a mask during the robbery; and (2) neither the surveillance videotape nor the remaining statements made by Broderick contained any factual evidence that the defendant was the gunman.

To convict a defendant of the crime of robbery in the first degree, the state must prove beyond a reasonable doubt that "in the course of the commission of the crime of robbery as defined in [General Statutes §] 53a-133⁸ or of immediate flight therefrom, [the defendant] or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . ." General Statutes § 53a-134 (a). The state has the burden of proving beyond a reasonable doubt the defendant's identity as one of the robbers, and the issue of the identity of the defendant as a perpetrator of the...