State v. Pharr
| Decision Date | 01 April 1997 |
| Docket Number | No. 15501,15501 |
| Citation | 44 Conn.App. 561,691 A.2d 1081 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Bennie PHARR. |
Auden Grogins, Special Public Defender, for appellant (defendant).
Richard F. Jacobson, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and John C. Smriga, Assistant State's Attorney, for appellee (State).
Before DUPONT, C.J., and FOTI and HEALEY, JJ.
The defendant, Bennie Pharr, appeals from the judgment of conviction, rendered after a jury trial, of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a)(4) 1 and one count of a commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. 2 The conviction arose out of a robbery of a BP gas station in Bridgeport on May 13, 1995.
On appeal, the defendant claims that the trial court (1) denied him his right to a fair trial under the United States and Connecticut constitutions by "gratuitously" instructing the jury to believe a police officer whose testimony was critical to his conviction and (2) abused its discretion by refusing to exclude extraneous evidence of his prior arrests.
Among the facts the jury could have reasonably found are the following. On May 13, 1995, at about 5 a.m., Bridgeport police received a complaint of robbery at a the BP station at 927 Park Avenue, Bridgeport. Kadar Bobiso, the BP station cashier who was working the midnight to 6 a.m. shift, told police he had been robbed at gunpoint and gave police the following account of the robbery. A customer had tendered a $100 bill to pay $13 dollars for gas, a cigarette lighter and a pack of cigarettes. He was in the process of returning his $87 in change when suddenly the robber, a black male, appeared. Pointing a gun 3 at Bobiso with one hand, the robber put his other hand on the money. Bobiso took his hand off the money and let the robber take the cash. Bobiso asked the customer who was present during the robbery to help him, but the customer said he could not take such a risk. After taking the money, the robber ran to a car and drove off. Bobiso recorded the plate number of the vehicle, which he described as a blue Audi or Hyundai, and called the police. The robbery took about one minute. The customer, after asking for and receiving his change, left before the police arrived.
In his statement to Bridgeport police Detective Raymond Masek, Bobiso estimated the robber's height as five feet, eight inches and his weight as 130 pounds and characterized the robber as a black male in his mid-thirties with a medium Afro hairstyle and clean shaven except for, possibly, a light mustache. During the identification process at the police station, at which Masek was present, Bobiso reviewed two books with arrays of photographs of black males. From one of these books, Bobiso identified one photograph of the defendant as the man who robbed him. The photograph showed the defendant, a black male, with dreadlocks, glasses, a goatee and a mustache. The defendant, according to other police testimony during the trial, was five feet, eleven inches tall and weighed 180 pounds. 4
Bobiso had seen the defendant at the BP station prior to the robbery, as well as once having seen him downtown in front of a store. After the date of the robbery, he had also observed the defendant as he drove by the BP station; at that time he called the police and gave them the license plate number he had observed on that car. The police, however, could not apprehend the defendant because the license plate number was not registered. Bobiso conceded that he did not know who the defendant was.
Thereafter, on the night of June 3, 1995, Officer Ricky DeWitt-Smith was on routine patrol in his police car and he stopped at the BP station, as he usually did, to check on the safety of the employee there. When he did so, a black male walked away from the window. Bobiso ran out and said to DeWitt-Smith, The officer approached this black male and told him that Bobiso was claiming that "you are the guy that robbed him" and that he was going to detain him for a while. After patting him down and placing him in the backseat of his police car, DeWitt-Smith asked him his name and for identification. The officer, on direct examination, said, "He gave me a name of Mark--I'm saying Freeman, but I'm not really sure exactly."
Having secured the black male in his patrol car, Dewitt-Smith then called the police station on his radio to determine if there was an active warrant out for the suspect. He also called for backup assistance. That assistance arrived, at which time another officer informed DeWitt-Smith that his detainee was not Freeman and that his name was Pharr. At that time, DeWitt-Smith had been given a warrant for the suspect in the robbery of the BP station with a photograph of Pharr on it. He confronted the suspect with the name of Pharr as well as the warrant with the photograph of Pharr, but the defendant did not respond, nor did he ever offer DeWitt-Smith any identification. Once DeWitt-Smith had confirmed that a warrant had been activated, he asked Pharr to step out of his patrol car, handcuffed him and placed him in the back of the assisting unit's patrol car. At the trial, DeWitt-Smith identified the defendant as the black male he had arrested as Pharr on June 3, 1995, at the BP station.
After the defendant's arrest, Masek conducted the investigation of the robbery, including taking Bobiso's statement and overseeing the identification process. Information obtained by him from the National Crime Information Computer (NCIC) indicated that Pharr had a prior arrest record. Masek referred to this both on direct and cross-examination. The defendant did not testify at the trial, although he did offer evidence, including an alibi. 5
The defendant first claims that the trial court denied him his right to a fair trial under the United States and Connecticut constitutions 6 by "gratuitously instructing the jury to believe a police officer whose testimony was critical to his conviction." This claim arises out of circumstances that occurred in the presence of the jury during the direct examination of the state's witness, DeWitt-Smith. After DeWitt-Smith testified that the victim had told him that the defendant was the "guy that robbed him," the officer said that he approached the defendant and " The state then asked: DeWitt-Smith answered: "I patted him down for officer safety like we usually do and I placed him in the backseat of my patrol vehicle." The state asked: The officer answered: "I--I asked him his name and asked him for some identification, yes." The state then asked: The officer answered: "He gave me a name of Mark--I'm saying Freeman, but I'm really not sure exactly."
Immediately thereafter, the state continued with its direct examination of DeWitt-Smith. Defense counsel did not object to the court's remarks and did not request a curative instruction. 7
Because this claim of the denial of a fair trial was not preserved at the trial, the defendant now seeks review of it in this court under the Golding doctrine. See State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). He argues that the trial court's remarks relating to a police officer's testimony violated his constitutional rights guaranteeing him the right to due process and a fair trial before an impartial judge and jury. In seeking Golding review, the defendant concedes that he failed to object to these remarks of the trial court and that he did not object "to the general jury charge regarding the 'credibility of a police officer.' " 8
In Golding, the Supreme Court held that ...
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