State v. Nims

Decision Date26 August 1986
Docket NumberNo. 3329,3329
Citation513 A.2d 1280,8 Conn.App. 631
PartiesSTATE of Connecticut v. Alpha NIMS.
CourtConnecticut Court of Appeals

Beth A. Merkin, New Haven, with whom, on brief, was Thomas Corradino, Branford, for appellant (defendant).

Robert J. Devlin, Jr., Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Daniel A. Lyons, Jr., Former Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and BORDEN and SPALLONE, JJ.

SPALLONE, Judge.

The defendant is appealing from the judgment rendered after he was convicted by a jury of one count of burglary in the first degree in violation of General Statutes §§ 53a-101(a)(1) and 53a-101(a)(2), two counts of attempted assault in the first degree in violation of General Statutes §§ 53a-59(a)(1) and 53a-49, two counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63, and one count of theft of a firearm in violation of General Statutes § 53a-212(a).

The defendant claims that the trial court erred (1) in allowing into evidence the identification testimony of Carol Jerolman, (2) in allowing into evidence the identification testimony of Officer Duane McKay after refusing to afford the defendant an evidentiary hearing in connection with his motion to suppress McKay's testimony, and (3) in the manner in which it commented on the evidence.

The jury could reasonably have found the following facts. At approximately 10 p.m. on August 2, 1983, the defendant, Alpha Nims, and another individual, Jenny Newton, drove to Wilbert Street in Hamden. After driving past 27 Wilbert Street four times, they parked, left the car, and walked into the rear of the residence of Sally Simonds at 12 Wilbert Street. George Jerolman witnessed the defendant and Newton enter the Simonds property. He stated that as the defendant and Newton entered the premises they were carrying what appeared to be plastic bags or pillow cases. Jerolman then called his mother, Carol Jerolman, who arrived on the scene accompanied by Mark Mazzone. Carol Jerolman and Mazzone went to the rear of the Simonds' residence. At this point, Newton came out of the back door and was grabbed and held by Mazzone, but he let her go to confront a man who dove out of a window of the Simond's residence. Mazzone described the man as being 5'7"' or 5'8"' tall, light skinned, with a small afro hair style, and deep cut facial lines. Mazzone also stated that the man wore no glasses, and no gloves. The man got away from Mazzone. Mazzone then went to the front of the house where he noticed a man on the left side of the house fire a shot into the air and two shots towards a group of people who had gathered in front of the house. Carol Jerolman ran from the Simonds' backyard to get additional help and, having concern for her son, ran toward him. While so engaged, her attention was drawn to a person coming from the side of the house near some bushes. Carol Jerolman shouted to a woman in the area to get back because of the gunfire. Because of her shouting, the man's attention was directed toward her, giving her an unobstructed view of his face which was illuminated by a nearby street light. Less than ten minutes later, Mazzone, who was walking further down Wilbert Street, saw the man with whom he previously had engaged in a struggle jump out of some bushes and fire shots at the police. Thereafter, at trial, although he was unable to make a positive identification of the defendant, Mazzone testified that the defendant's skin color and afro hair style were similar to those of the man with whom he had struggled and who fired a weapon during the incident of August 2, 1983.

Officers Duane McKay and William Fry arrived on the scene in response to a report of a burglary in progress. As the officers approached the scene in their patrol car, they heard gunfire. When the police car turned into Wilbert Street, McKay saw, in the light of the vehicle's headlights, a black male and female. McKay got out of the patrol car and the black male continued to walk toward him and then fired at the officers from a distance of between twenty and twenty-five feet. The person who fired the shots ran off pursued by McKay into a backyard where, from a distance of fifteen feet, the man turned and again fired at McKay. The man jumped a fence causing McKay to lose sight of him although McKay again sighted the man from a distance of between fifteen and twenty yards running across Wilbert Street under a street light and then between two houses. The police then located the vehicle that had been driven to the scene by the defendant. In it they found a shotgun. The defendant's fingerprints were found on a soda can and a paper bag taken from the backseat of the car and on the hood of the car. On August 15, 1983, when he was arrested for the above crimes, the defendant stated to the arresting officer, "You have the wrong guy," and told the officer that his name was Walter Johnson.

At trial, Newton testified that she and the defendant were in the Simonds' house stealing items when they heard people approaching, at which time they fled. When Newton was grabbed by Mazzone, she saw the defendant fire a shot in her direction. She identified the pistol, found by the police in a field where the man who fired the shots was last seen, as belonging to the defendant. She also identified a shotgun as having been in the backseat of the defendant's car on the night of the incident, and identified the defendant as the person who was with her, who engaged in the burglary and who fired the shots. In addition, she gave the police a picture of the defendant.

At the commencement of the defendant's trial, Carol Jerolman accompanied her son, George, to the courthouse where he was to be a witness for the state. Carol Jerolman looked into the courtroom and saw the defendant seated at a counsel table and immediately identified him as the black male who pursued her and apparently shot at her on the night of the incident. No law enforcement agent requested or encouraged her to look in the courtroom. Prior to her looking into the courtroom, she had not engaged in any identification procedures relative to this case. Further, she saw no photos of the defendant between the time she saw him in the courtroom and when she testified. During the jury trial, she made a positive in-court identification of the defendant as the person she had seen on the night of the burglary.

Officer McKay also made a positive in-court identification of the defendant as the person he observed on the night of the crime. McKay's first view of the defendant occurred as McKay arrived at the scene and observed Newton and the defendant walking toward him. He ordered them to stop and, at that time, the defendant fired a shot toward McKay. McKay saw the defendant again that night, both when the defendant was scaling a fence and when he ran across a street under a street light.

Shortly after the incident, McKay, having become aware that the defendant was a suspect, acquired a single photo of him and immediately recognized him as the person he had confronted and chased during the incident. Upon the defendant's arrest, McKay and other members of the Hamden police department went to New Haven to pick him up. Upon his arrival at the New Haven police department, McKay saw the defendant seated in an office and he immediately recognized him as the person he had confronted and chased during the incident. The trial court refused the defendant's request to conduct a preliminary hearing regarding McKay's identification testimony. At the trial, McKay testified as to the circumstances of his out-of-court identification of the defendant. In addition, McKay made a positive in-court identification of the defendant.

The defendant's first claim is that the identification by Carol Jerolman of the defendant while he was seated in the courtroom was unnecessarily suggestive and, under the totality of the circumstances, unreliable. He contends that it was error for the trial court to have allowed this evidence and the subsequent in-court identification to come before the jury.

" 'A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.' " State v. Evans, 200 Conn. 350, 354, 511 A.2d 1006 (1986), quoting State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984); State v. Elliott, 8 Conn.App. 566, 569, 513 A.2d 1285 (1986); State v. Wiggins, 7 Conn.App. 95, 99, 507 A.2d 518 (1986). "In order to determine whether the identification procedures violated the defendant's due process rights, a case by case inquiry must be made as to (1) whether the identification procedures were unnecessarily suggestive, and, if so, (2) whether the identification was nevertheless reliable based upon an examination of the totality of the circumstances. State v. Findlay, 198 Conn. 328, 336-37, 502 A.2d 921 (1986); State v. Amarillo, 198 Conn. 285, 291, 503 A.2d 146 (1986); State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985)." State v. Frazier, 7 Conn.App. 27, 34, 507 A.2d 509 (1986).

We note that the defendant has made no showing that Carol Jerolman's viewing of the defendant while he was awaiting trial was prearranged or was in any way contrived by the police or the prosecuting authority. Absent an official procedure which is subject to the strictures of due process, the court was correct in concluding that Jerolman's in-court identification of the defendant was not tainted and that the defendant's due process rights were not violated by the admission of the evidence. State v. Villafane, 171 Conn. 644, 658, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558 (1977), overruled, in part, on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984), reh....

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  • State v. Flynn, s. 4132
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    ...not direct or advise the jury on how to decide the case. State v. Storlazzi, 191 Conn. 453, 465, 464 A.2d 829 (1983); State v. Nims, 8 Conn.App. 631, 640, 513 A.2d 1280, cert. denied, 201 Conn. 812, 516 A.2d 887 (1986). This rule is premised on a criminal defendant's constitutional right to......
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