State v. Salmon

• Decision Date: 09 October 2001
• Docket Number: (AC 20778)
• Citation: 783 A.2d 1193,66 Conn. App. 131
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. MARVIN SALMON

66 Conn. App. 131

783 A.2d 1193

STATE OF CONNECTICUT v. MARVIN SALMON

(AC 20778)

Appellate Court of Connecticut.

Argued June 13, 2001.

Officially released October 9, 2001.

Lavery, C. J., and Schaller and Spear, JS. Nicholas P. Cardwell, for the appellant (defendant).

Nancy L. Chupak, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and John F. Fahey, assistant state's attorney, for the appellee (state).

Opinion

LAVERY, C. J.

The defendant, Marvin Salmon, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a.¹ On appeal, the defendant claims that the trial court improperly (1) failed to suppress the pretrial photographic identifications of him that were obtained as a result of impermissibly suggestive procedures and were not reliable under the totality of the circumstances, and (2) denied motions for judgment of acquittal at the close of evidence and upon the verdict of guilty. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the afternoon of October 22, 1994, the victim, Claven Hunt, stood at the end of the driveway at 90 Irving Street talking to another resident of the building. A red Subaru drove up to the victim, and a black man with his hair in dreadlocks exited from the vehicle. The man fired a .38 caliber handgun at the victim. The victim then ran and his assailant pursued him. The assailant fired several more bullets; two bullets hit the victim in the back and three bullets hit a drain spout and the doors to a garage. Soon thereafter, the police found the unconscious victim, who was later pronounced dead at Saint Francis Hospital and Medical Center in Hartford.

The red Subaru left the area of the shooting, and an off-duty Hartford police officer, Matt Rivera, noticed it moving quickly through traffic on Blue Hills Avenue. Rivera heard a dispatch that a vehicle matching the description of the red Subaru had been involved in a shooting. Although Rivera did not pursue the vehicle because he was off duty and driving his own car, he informed the dispatcher that while he was driving on Blue Hills Avenue he had noticed a vehicle matching the description of the red Subaru. In addition, Rivera provided the license plate number of the vehicle. The police determined that the vehicle belonged to the defendant's mother and found it parked at the defendant's mother's address.

The Hartford police picked up the vehicle and brought it to the evidence garage. The police dusted the car for latent fingerprints and found a fingerprint that matched that of the defendant. In addition, the police determined that there were traces of gunshot residue from a .38 caliber bullet in the car.

Subsequently, Detective Keith Knight handled the investigation of the shooting. During the course of the investigation, the Hunt family provided Knight with two witnesses to interview, Theodore Owens and Duane Holmes. On the basis of photographic identifications made by those witnesses, Knight was able to obtain an arrest warrant for the defendant, and the defendant was convicted following a jury trial. At trial, the defendant filed a motion to suppress the pretrial identifications made by Owens and Holmes from the photographic arrays. He claimed that the identifications were unnecessarily suggestive and failed to meet the standard of reliability. The court denied the motion to suppress after an evidentiary hearing. The court also denied the defendant's motions for judgment of acquittal made at the close of evidence and upon the jury's return of the verdict of guilty. Additional facts will be provided as necessary.

I

The defendant first claims that the court improperly denied his motion to suppress the pretrial photographic identifications made by Owens and Holmes because they were unnecessarily suggestive and not reliable under the totality of the circumstances. The defendant claims that the denial of his motion to suppress the pretrial identifications resulted in the denial of his constitutional right to due process. We disagree.

When a trial court denies a motion to suppress a pretrial identification, the standard of review is well established. "Upon review of a trial court's denial of a motion to suppress, [t]he court's conclusions will not be disturbed unless they are legally and logically inconsistent with the facts." (Internal quotation marks omitted.) State v. Davis, 61 Conn. App. 621, 629, 767 A.2d 137, cert. denied, 255 Conn. 951, 770 A.2d 31 (2001). "[W]e will reverse the trial court's ruling [on evidence] only where there is abuse of discretion or where an injustice has occurred ... and we will indulge in every reasonable presumption in favor of the trial court's ruling.... Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error.... Because the issue of the reliability of an identification involves the constitutional rights of an accused ... we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court's ultimate inference of reliability was reasonable." (Internal quotation marks omitted.) State v. Bowens, 62 Conn. App. 148, 159-60, 773 A.2d 977, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001).

"[T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances.... To prevail on his claim, the defendant has the burden of showing that the trial court's determinations of suggestiveness and reliability both were incorrect....

"[R]eliability is the linchpin in determining the admissibility of the identification testimony .... To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [witness] to view the criminal at the time of the crime... the accuracy of [the witness'] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification]....

"[W]e examine the legal question of reliability with exceptionally close scrutiny and defer less than we normally do to the related fact finding of the trial court.... Absent a very substantial likelihood of irreparable misidentification, [w]e are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature." (Citations omitted; internal quotation marks omitted.) State v. Reid, 254 Conn. 540, 554-56, 757 A.2d 482 (2000).

As a threshold matter, we note that the defendant implies that the circumstances surrounding Owens' and Holmes' coming forward as eyewitnesses render the photographic identification unnecessarily suggestive. What makes a photographic identification unnecessarily suggestive, however, is when the police conduct the identification process in a way that emphasizes or suggests the defendant's photograph. State v. Owens, 38 Conn. App. 801, 811, 663 A.2d 1094, cert. denied, 235 Conn. 912, 665 A.2d 609 (1995). Moreover, as stated previously, the totality of the circumstances surrounding the identification will be examined only if it is determined that the identification process was unnecessarily suggestive. State v. Reid, supra, 254 Conn. 554. We conclude that the identification procedure was not unnecessarily suggestive.

The defendant claims that the array was unnecessarily suggestive because (1) Owens and Holmes knew that a suspect was included in a photographic array, (2) none of the individuals in the photographs had dreadlocks and one of the witnesses identified the shooter as having dreadlocks, (3) Knight did not adequately question the witnesses before he showed them the photographs, (4) Knight limited the number of photographs for the witnesses to eight and (5) Knight added to the witnesses' statements because he was motivated to arrest the defendant. We will address each of these arguments in turn.

The defendant first argues that the photographic identification procedure was unnecessarily suggestive because Owens and Holmes knew that the suspect's picture was contained in the array. The following additional facts are necessary for our resolution of this claim.

On May 2, 1996, Knight met with Owens at the Osborn Correctional Facility. That day, Knight took a witness statement from Owens and showed him an array of eight photographs. Owens chose the defendant's photograph from the array. Knight testified that he did not tell Owens that he needed to pick someone from the array. On June 11, 1996, one of the brothers of the victim brought Holmes to a Hartford police station. Holmes met with Knight and identified the photograph of the defendant from an array of eight photographs. Knight testified that he did not suggest a photograph for Holmes to pick.

In State v. Owens, supra, 38 Conn. App. 811, this court stated that "[e]ven if a court finds that the police expressly informed witnesses that the defendant would be in the array, our courts have found the identification procedure unnecessarily suggestive only when other factors exist that otherwise emphasize the defendant's...