State v. Myers
| Decision Date | 26 June 1984 |
| Citation | 193 Conn. 457,479 A.2d 199 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Levester MYERS. |
Joseph G. Bruckmann, Hartford, for appellant (defendant).
Roland D. Fasano, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Kenneth Leyba, legal intern, for appellee (State).
Before PETERS, PARSKEY, SHEA, GRILLO and SPADA, JJ.
The principal issue in this case is whether the defendant's conviction must be reversed because the New Haven police department's routine erasure of a tape recorded statement of the complaining witness foreclosed strict compliance by the state with the disclosure provisions of Practice Book § 752.
The defendant, Levester Myers, was charged by substituted information with sexual assault in the first degree, in violation of General Statutes § 53a-70(a) 1 and robbery in the first degree, in violation of General Statutes § 53a-134(a)(3). 2 The jury returned verdicts of guilty on both counts. After denying the defendant's motions for judgment of acquittal and for a new trial, the trial court rendered judgment in accordance with the jury verdicts. The defendant appeals from the judgment of conviction.
From the evidence presented at trial the jury might reasonably have found the following facts. On the afternoon of Sunday, March 22, 1981, the victim left her apartment on the third floor of a high rise apartment building in New Haven to go grocery shopping. After she had been waiting for the elevator for several minutes she noticed the defendant, a young black man, exit a stairway at the end of the hall and walk the length of the hall to the elevator where she was standing. Something about the defendant made the victim feel uneasy and she decided that she did not want to ride down in the elevator with him. She turned around and walked down the hall toward the stairway from which the defendant had come. As she walked, the defendant called out to her in a mocking tone, The victim turned and looked at the defendant but did not respond. She continued to the stairway and descended as quickly as possible.
When the victim got to the second floor landing she felt a hand grab her from behind and she screamed. The defendant told her that he had a knife and that she would not get hurt if she was quiet. The victim screamed once more and then fell silent when she felt the point of a knife at the back of her neck. The defendant told the victim to give him her money. The victim had no cash, but offered the defendant her wallet, her credit cards and her checkbook. The defendant then told the victim that he would rape her, which he did. After the defendant had completed his sexual assault, he ordered the victim not to come after him. Taking her wallet, he fled.
The victim had observed the defendant for several minutes in bright light as he walked from the stairway to the elevator on the third floor. She did not see him during the course of the subsequent assault in the stairway because he was behind her for much of the time and because her eyes were closed. The victim was absolutely positive, however, that the man whom she had observed in the hallway was the man who had assaulted her on the stairs, because on both occasions the defendant spoke in the same distinctive mocking tone of voice.
After the defendant had fled, the victim waited for several minutes on the stairway landing and then returned to her apartment. She did not immediately report the incident to the police because she feared that the defendant would return. Later, at approximately 1 a.m. the following morning, the victim anonymously reported the incident to the police. She also reported the attack to a counselor in the rape crisis unit at Yale-New Haven Hospital.
On Tuesday morning, March 24, 1981, having learned the victim's identity from information provided by the rape crisis unit and her own anonymous telephone call, two New Haven police officers interviewed the victim at her office. At that time she described the incident to the police and gave a description of the defendant. She did not then give a written statement or return with the officers to the police station to view photographs.
On March 25, 1981, the victim did go to the police station to attempt a photographic identification. She viewed approximately seventy-six photographs of young black males, most of which were arranged in pairs in plastic trays. The remainder of the photographs, including the defendant's, were loose in a pile on the investigating detective's desk. The victim positively identified the defendant's photograph as soon as she saw it, but, still undecided about pursuing a formal complaint, she refused to sign the photograph or to give a written statement at that time. Five days later, on March 30, 1981, the victim returned to the police, signed a written statement describing the offense and indicated her positive identification of the defendant by signing the photograph. The photograph and testimony concerning the victim's photographic identification were admitted at trial. In court, the victim also positively identified the defendant as her assailant.
The defendant presented an alibi defense. Through his own testimony and that of two security guards, he claimed that on the date and at the time of the offense he had been shoplifting at Macy's department store in New Haven in order to support his heroin habit.
On appeal the defendant claims that the trial court erred (1) in denying his request for a continuance; (2) in denying his motion to suppress the victim's photographic and in-court identifications; (3) in refusing to strike the victim's testimony pursuant to Practice Book § 755 when the state failed to produce her previous statements; and (4) in denying his motions for judgment of acquittal. We find no error.
The defendant's first claim of error argues that the trial court abused its discretion when it denied his request for a continuance. We disagree.
The defendant had been represented by the office of the public defender from April 3, 1981, until February 9, 1982, when Attorney John J. Buckley was appointed as a special public defender. On Friday, March 12, 1982, after selection of the jury, Attorney Buckley requested a one week continuance in order to prepare a defense. He claimed that he had been constantly on trial in other cases since his appointment and that as a result he had not had an adequate opportunity to confer with the defendant or to prepare the case. The trial court denied Attorney Buckley's motion and ordered him to proceed that day with the motion to suppress identification. After denying the motion to suppress, the court ruled that the jury trial would not go forward immediately but would be continued until the following Monday. On Monday morning, March 15, 1982, Attorney Joseph Bruckmann appeared on behalf of the defendant in lieu of Attorney Buckley and requested a two day continuance. The trial court granted the continuance on the condition that it take effect after the testimony of the victim, who was then present in court and ready to testify.
The defendant acknowledges that the decision to grant or deny a continuance lies within the discretion of the trial court. State v. McKnight, 191 Conn. 564, 576-77, 469 A.2d 397 (1983); State v. Jeustiniano, 172 Conn. 275, 284, 374 A.2d 209 (1977); State v. Bethea, 167 Conn. 80, 84, 355 A.2d 6 (1974). Our inquiry on appeal is limited to whether the trial court abused its broad discretion. We do not decide whether we would, in the trial court's place, have reached a different conclusion.
While we agree with the defendant that he was facing serious charges and that there was no evidence that either of his attorneys requested a continuance for the purpose of delay, these circumstances do not in themselves warrant a finding that the trial court abused its discretion. Nor does the substitution of counsel at the eleventh hour automatically entitle the defendant to a continuance. "It must be shown that the trial judge acted arbitrarily and substantially impaired the defendant's ability to defend himself, before an appellate court will conclude that the trial judge abused his discretion." United States v. Ellenbogen, 365 F.2d 982, 985 (2d Cir.1966), cert. denied, 386 U.S. 923, 87 S.Ct. 892, 17 L.Ed.2d 795 (1967); see Ungar v Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921, reh. denied, 377 U.S. 925, 84 S.Ct. 1218, 12 L.Ed.2d 217 (1964).
The defendant has not alleged any specific prejudice to his defense as a result of the trial court's denial of his requests for a continuance. Both attorneys who appeared on the defendant's behalf fully cross-examined the state's witnesses and Attorney Bruckmann presented a thorough, well prepared defense at trial. Under these circumstances, we find no merit to the defendant's first claim of error. 3
The defendant next claims that the pretrial photographic identification procedures employed by the police were so unnecessarily suggestive that the admission at trial of the victim's in-court identification of the defendant and of testimony concerning her previous photographic identification violated his right to due process of law. We disagree.
It is well settled that in order to succeed on a motion to suppress identification evidence, the defendant must prove (1) that the identification procedures were unnecessarily suggestive; and (2) that the resulting identification was not reliable in the totality of the circumstances. State v. Vass, 191 Conn. 604, 608-609, 469 A.2d 767 (1983); State v. McKnight, supra, 191 Conn. 570, 469 A.2d 397; State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983); State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980).
The defendant's argument that the identification in this case was unnecessarily suggestive rests on his contention...
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