State v. Reddick

Decision Date06 August 1985
Citation197 Conn. 115,496 A.2d 466
PartiesSTATE of Connecticut v. Michael REDDICK.
CourtConnecticut Supreme Court

Sue L. Wise, New Haven, with whom, on the brief, were John R. Williams, Hartford, and Elizabeth M. Inkster, Madison, for appellant (defendant).

Peter Nussbaum, legal intern, with whom was Guy W. Wolf, III, Asst. State's Atty., and, on the brief, Arnold Markle, State's Atty., for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

CALLAHAN, Associate Justice.

The defendant, Michael Reddick, was convicted for first degree robbery and of assault of a victim sixty or older in the third degree, in violation of General Statutes §§ 53a-134(a)(4) and 53a-61a(a), 1 respectively, and was sentenced to an effective term of imprisonment of not less than nine nor more than eighteen years. He appeals from the judgment of conviction claiming that his rights under the state and federal constitutions were violated by: (1) the court's failure to require the state to produce allegedly exculpatory material; (2) a witness' invocation of his fifth amendment privilege against self-incrimination during direct examination by the prosecutor; (3) the state's introduction of evidence regarding the defendant's pretrial incarceration; and (4) alleged errors in the court's jury instructions. 2 We find no error.

The jury could reasonably have found the following facts: On June 24, 1980, at approximately 10:30 a.m., the Jackson-Marvin Hardware Store at 843 Whalley Avenue in New Haven was robbed by a black male carrying what appeared to be a sawed-off shotgun. The perpetrator initially went to a side office in the store and inquired of a bookkeeper, Esther Woodward, whether duplicate keys were made on the premises. After receiving an affirmative response, he left, but returned in a few minutes, displayed the gun, and began taking money from an open drawer in Woodward's desk. At that point, Martin Daniell, a seventy-five year old employee of the store, intervened. The robber struck Daniell with the gun on the shoulder and forehead, and then fled. While fleeing, the perpetrator encountered a cashier, Jill Harrison, in an aisle in the store and pushed her aside. Upon leaving the store, he entered a car which was parked in front and left the area. A customer, Joseph Puglisi, who was at the entrance of the store, saw the robber get into the car and noted the license plate number. The car, which was a stolen vehicle, was later found abandoned.

On July 10, 1980, Esther Woodward, the bookkeeper, and Jill Harrison, the cashier, independently viewed police photographic displays containing pictures of black males and identified the defendant as the man who had robbed the hardware store on June 24, 1980. The defendant was arrested and later tried before a jury. At the trial, Woodward testified that she was 90 percent sure of her photographic identification. She also testified that she was 90 percent sure that the defendant, whom she identified in the courtroom, was the man who had robbed the store. Harrison testified that she had picked out photographs of other black males as appearing similar to the defendant before she selected the defendant's photograph as that of the robber. In the courtroom, Harrison identified the defendant as the robber and testified that she was absolutely sure of her in-court identification. A note from the jury during the course of its deliberations indicated that it considered identification to be the critical issue in the case and that it was troubled by the evidence in that regard. 3

I

The defendant first claims that he was denied due process of law and the effective assistance of counsel because prior to trial the state failed to disclose, and the trial court denied motions to obtain, allegedly exculpatory information, namely, the failure of several eyewitnesses to the robbery to identify the defendant as the robber. There were two individuals other than Woodward, Harrison, Daniell and Puglisi in the Marvin-Jackson Hardware Store on the morning of June 24, 1980, at the time of the robbery. They were James Bethune, an employee of the store, and a customer, Paul Gagliardi. The defendant asserts that the pretrial photographic identifications supplied by Woodward and Harrison constituted "the only evidence against him." He argues that under these circumstances, the inability of the other four eyewitnesses to identify him was exculpatory material that the court should have required the state to produce prior to trial and that its failure to do so entitles him to a new trial. We disagree.

There is no indication in the record that either Bethune or Daniell ever attempted to make a pretrial photographic identification of the defendant. We have been unable to find any support for the undocumented assertion in the defendant's brief that Bethune had an opportunity to view the robber, and we note that he was not called to testify at the trial. Daniell, who had extremely poor eyesight, could not make an identification, and told the police so immediately after the robbery. Although Daniell testified at the trial, he was not asked to make an in-court identification of the defendant.

Gagliardi and Puglisi, however, both had an opportunity to view the robber as he ran from the store after the robbery. Each testified at trial that he had been shown photographs by the police in an unsuccessful attempt to elicit an identification of the robber. Gagliardi testified that the defendant looked similar to the person he had seen fleeing from the store, but that he could not be certain of an identification. Puglisi testified that he could have identified the man soon after the robbery, but did not think he could recognize him at the time of trial. He was not asked to make an in-court identification. Neither the identities of Gagliardi and Puglisi nor their inability to identify the defendant was revealed to the defendant prior to trial, despite requests for that information.

The record is unclear as to whether or not the photographic displays shown to Gagliardi and Puglisi contained a photograph of the defendant. If the defendant's picture was not among those displayed, then obviously each man's failure to make an identification of the defendant would not be exculpatory. If the displays did contain a recognizable photograph of the defendant, however, the failure of the witnesses to identify the defendant might be exculpatory. In any case, both Gagliardi and Puglisi testified that they were unable to identify the defendant from photographs prior to trial or from viewing the defendant in person at the trial. Since the inability of these witnesses to make an identification of the defendant was disclosed at trial, this information, whether exculpatory or not, certainly was not suppressed.

"The rule of Brady v. Maryland, 373 U.S. 83, [83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),] arguably applies in three quite different situations. Each involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense." (Emphasis added.) United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976). "Indeed the standard developed in Agurs can only sensibly be applied to the suppression of evidence throughout the trial...." United States v. McPartlin, 595 F.2d 1321, 1346 (7th Cir.1979). "Evidence known to the defendant or his counsel, or that is disclosed, even if during trial, is not considered suppressed as that term is used in Brady. State v. Altrui, 188 Conn. 161, 177, 448 A.2d 837 (1982); State v. Perez, 181 Conn. 299, 309, 435 A.2d 334 (1980); State v. Grasso, 172 Conn. 298, 303, 374 A.2d 239 (1977)." State v. Dolphin, 195 Conn. 444, 455-56, 488 A.2d 812 (1985).

Here, the nonidentification information was disclosed at trial. Gagliardi and Puglisi each testified as to his inability to identify the defendant either from photographs or in person. Since the jury was fully informed of the lack of an identification by these witnesses, the defendant can complain only of the timing of the disclosure and has no basis for a claim of suppression. See Hudson v. Sowders, 510 F.Supp. 124, 126 (W.D.Ky.1981), aff'd, 698 F.2d 1220 (6th Cir.1982). Under these circumstances, the defendant bears the burden of proving that he was prejudiced by the state's failure to make the information available to him at an earlier time. United States v. Stone, 471 F.2d 170, 173-74 (7th Cir.1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1898, 36 L.Ed.2d 391 (1973).

The defendant did not develop before the trial court or on appeal any specific way in which he was prejudiced by not being furnished, prior to trial, with information as to the inability of the witnesses to make an identification. In his brief, the defendant baldly asserts that because he was not informed of the nonidentification prior to trial, he was deprived of the opportunity to make an adequate investigation and was therefore denied the effective assistance of counsel. He fails to specify, however, in what way the discovery of this information before trial would have aided the preparation and presentation of his defense. Both Gagliardi and Puglisi testified at trial and were available for cross-examination. Gagliardi was not cross-examined at all by defense counsel, and Puglisi was asked only six brief questions on cross-examination. No request for a continuance was made after either witness testified. "The appropriate standard to be applied in a case such as this is whether the disclosure came so late as to prevent the defendant from receiving a fair trial." United States v. McPartlin, supra, at 1346; State v. Packard, 184 Conn. 258, 277, 439 A.2d 983 (1981). After reviewing the record and the defendant's broad claims of prejudice, we cannot conclude that his lack of information prior to trial concerning the witnesses' inability to identify the...

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