State v. Payne, 13998

• Decision Date: 21 May 1991
• Docket Number: No. 13998,13998
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Freddy PAYNE.

Page 1246

591 A.2d 1246

219 Conn. 93

STATE of Connecticut v. Freddy PAYNE.

No. 13998.

Supreme Court of Connecticut.

Argued Feb. 19, 1991.

Decided May 21, 1991.

Donald D. Dakers, Public Defender, for the appellant (defendant).

Leon F. Dalbec, Jr., Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Elpedio Vitale, Asst. State's Atty., for the appellee (state).

Before PETERS, C.J., and COVELLO, HULL, BORDEN and SANTANIELLO, JJ.

SANTANIELLO, Associate Justice.

The defendant appeals from the judgment of conviction of the crimes of burglary in the third degree with a firearm in violation of General Statutes § 53a-103a(a), ¹ robbery in the first degree in violation of General Statutes § 53a-134(a)(4), ² larceny in the first degree in violation of General Statutes § 53a-122(a)(2), ³ and kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B). ⁴ The defendant claims that the trial court improperly: (1) allowed the state, in its case-in-chief, to introduce evidence of the defendant's commission of a subsequent crime in order to prove identity; (2) allowed one of the victims, Allyson Brownlow, to testify as to her pretrial identification of the defendant while he was being arraigned on unrelated charges; (3) prohibited the defendant from cross-examining Allyson Brownlow on the effect that her observation of photographs of the defendant, mailed to her by the defendant prior to trial, had on her in-court identification of the defendant; (4) excluded the testimony of Michelle Gary as to incriminating statements made to her by the defendant's brother, Donald Payne; and (5) excluded evidence that a third party committed the crimes charged. We conclude that the trial court improperly allowed evidence of the defendant's commission of a subsequent crime in order to prove identification, and that this improper admission constituted harmful error. As to the other issues, we affirm the trial court's rulings. Accordingly, we reverse the conviction, and remand the case for a new trial.

The jury might reasonably have found the following facts. On November 20, 1988, the victims, Allyson and James Brownlow, resided in a single family, three story house located at 683 Prospect Street in New Haven. At approximately 6 a.m., they were awakened by two black men with guns who had burst through their bedroom door and turned on the lights. The first man went to Mr. Brownlow's side of the bed and pointed a gun at him, while the second man, identified as the defendant, went to Mrs. Brownlow's side of the bed and pointed a gun at her. The Brownlows were ordered to roll over onto their stomachs in bed. As she lay on her stomach, Mrs. Brownlow's face was turned so that she could observe the defendant. The defendant kept his gun pointed at Mrs. Brownlow while he rifled through the dresser drawers on her side of the bed and removed various pieces of jewelry. During part of this time, the defendant was a foot to a foot and a half away from Mrs. Brownlow. During the entire time spent in the Brownlows' bedroom, the defendant wore a fiberglass painter's mask covering his mouth and the lower part of his nose. At one point, when the defendant's partner became agitated because the Brownlows did not have enough cash in the house, Mrs. Brownlow sat up in bed, took off her engagement ring and handed it to the defendant to try to calm the partner. Mrs. Brownlow got a "very good look" at the defendant as she handed the ring to him, and then she lay on her side and continued to observe him. After ten to fifteen minutes had elapsed, the defendant and his partner left the victims' second floor bedroom, went downstairs and left the house through the kitchen door. Mr. Brownlow phoned the police. After the police arrived, it was discovered that a locked kitchen window on the first floor had been forced open.

The jury found the defendant guilty of the crimes charged, and he was thereafter sentenced to a total effective term of twenty-five years imprisonment. The defendant appealed to this court pursuant to General Statutes § 51-199(b)(3). ⁵

I

The defendant first claims that the trial court improperly permitted the state, in its case-in-chief, to introduce evidence of the defendant's commission of a subsequent crime in order to prove identity. We agree that the admission of this evidence was both improper and harmful.

The rules governing the admissibility of evidence concerning the defendant's commission of a subsequent unconnected crime are well established. Such evidence is inadmissible to prove the defendant's bad character or propensity for criminal behavior. State v. Crosby, 196 Conn. 185, 190, 491 A.2d 1092 (1985); State v. Carsetti, 12 Conn.App. 375, 380, 530 A.2d 1095, cert. denied, 205 Conn. 809, 532 A.2d 77 (1987). " ' "Evidence of other misconduct, however, 'may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity'; State v. Ibraimov, [187 Conn. 348, 352, 446 A.2d 382 (1982) ]; or an element of the crime. State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982)." State v. Braman, 191 Conn. 670, 675-76, 469 A.2d 760 (1983); State v. Ryan, 182 Conn. 335, 337, 438 A.2d 107 (1980).' State v. O'Neill, 200 Conn. 268, 273, 511 A.2d 321 (1986)." State v. Sierra, 213 Conn. 422, 428-29, 568 A.2d 448 (1990). "To be admitted under one of these exceptions, the evidence must satisfy a two-pronged test: ' "First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions." State v. Braman, [supra, 191 Conn. at 676, 469 A.2d 760]. Second, the probative value of the evidence must outweigh its prejudicial effect. Id.' State v. Mandrell, 199 Conn. 146, 151, 506 A.2d 100 (1986)." State v. Sierra, supra, 213 Conn. at 429, 568 A.2d 448.

Outside the presence of the jury, the state offered the testimony of Detective Frederick Hurley of the New Haven police department concerning his December 16, 1988 arrest of the defendant for attempted burglary. The trial court overruled the defendant's objection to Hurley's testimony and permitted him to testify before the jury. Hurley testified that on December 16, 1988, at approximately 3 a.m., he and his partner were on surveillance in the vicinity of 470 Prospect Street and were dispatched to that address to investigate a report of a burglary in progress. Upon arriving at the scene, Hurley observed two black males huddled together on the front stoop of an apartment, with their backs to the street, directing their attention to the inner front door while the outer screen door was propped open by their bodies. The two men were identified as the defendant and Douglas Antrum. The defendant had in his possession a Playtex dishwashing glove, a white sock and an empty knife case. A knife was found next to the stoop. Antrum had in his possession a screwdriver and the right half of a toy pistol. Hurley found pry marks on the door frame around the lock. The occupants of 470 Prospect Street informed the police that they had been awakened by the sounds of their doorbell ringing and the front door knob being jiggled and shaken and, after looking outside and seeing the two men on the front stoop, they had called the police. Hurley testified that 470 Prospect Street is approximately two blocks from the Brownlow residence. He further testified that 470 Prospect Street is a two story apartment that is part of a "row house" consisting of approximately ten apartments connected in a row.

The trial court found that the proffered testimony of Hurley was "extremely material to the issue of identification." The state has the burden to prove identity as one element of the crime alleged. State v. Perry, 195 Conn. 505, 521, 488 A.2d 1256 (1985). " 'The first threshold for the use of evidence of other crimes or misconduct on the issue of identity is that the methods used be "sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other." [State v. Ibraimov, supra, 187 Conn. at 354, 446 A.2d 382].' State v. Crosby, [supra, 196 Conn. at 190, 491 A.2d 1092]. ' "Much more is required than the fact that the offenses fall into the same class. 'The device used must be so unusual and distinctive as to be like a signature.' " State v. Ibraimov, supra, [187 Conn. at] 354 .' State v. Mandrell, supra, [199 Conn. at] 151-52 . In order to determine if this threshold criterion for admissibility was met, we must examine the proffered evidence and compare it to the charged offenses." State v. Sierra, supra, 213 Conn. at 430, 568 A.2d 448.

In making this comparison, the features common to both crimes must be sufficiently distinctive to warrant a belief that the same person committed both. State v. Ibraimov, supra. There should not be significant differences in the context and modus operandi of the crimes. See State v. Howard, 187 Conn. 681, 686, 447 A.2d 1167 (1982).

Hurley's testimony reveals the following common features: both crimes involved burglaries, although the second one was an unsuccessful attempt; the Brownlow residence and the site of the second crime were approximately two blocks apart; private residences were involved in each burglary, although one was a single family home and the other was an apartment in a row house; both crimes were committed in the early morning hours, 3 a.m. and 6 a.m. respectively; the crimes occurred twenty-seven days apart; both crimes involved forced entry through a locked opening; and the defendant was described as wearing two layers of outerwear by witnesses to both crimes. Finally, both crimes were committed in such a manner, and at such a time, that confrontation with the home's occupants would be likely. It is only this last common feature that can in any reasonable way be characterized as unique or distinctive, ⁶ but we are not persuaded that this fact alone raises these...