State v. Salmond

• Decision Date: 13 February 2018
• Docket Number: AC 40237
• Citation: 180 A.3d 979,179 Conn.App. 605
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Dennis SALMOND

179 Conn.App. 605

180 A.3d 979

STATE of Connecticut

v.Dennis SALMOND

AC 40237

Appellate Court of Connecticut.

Argued October 11, 2017

Officially released February 13, 2018

Lisa J. Steele, assigned counsel, for the appellant(defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Pamela J. Esposito, senior assistant state's attorney, for the appellee(state).

Alvord, Elgo and Sullivan, Js.

SULLIVAN, J.

The defendant, Dennis Salmond, appeals from the judgment of conviction of murder in violation of General Statutes § 53a–54a(a) and criminal possession of a pistol or revolver in violation of General Statutes(Rev. to 2013)§ 53a–217c (a)(1).On appeal, the defendant claims that the trial court(1) violated his constitutional right to due process by denying his motion to suppress an eyewitness' in-court identification of him, and (2) abused its discretion by denying his request for a special credibility instruction with respect to the testimony of that eyewitness.We disagree and, accordingly, affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts.This case is the end result of a dispute over "drug turf" in the east end of Bridgeport.The victim, Kiaunte "Stretch" Ware, lived on Sixth Street in Bridgeport and sold drugs in that neighborhood.The defendant¹ had recently returned to live in the east end and started selling drugs on Sixth Street.The defendant was not a Sixth Street regular, but he"[w]as ... out there enough" to be noticed by the victim and his friend, Richard Jackson.On July 15, 2013, the victim and the defendant had a physical altercation on Sixth Street.Later that day, the defendant sent a text message to a friend stating that he had been jumped by the victim and another male, who told him that he could not come on Sixth Street.The defendant further stated that he"wasn't hearing [that]" and that he was looking for a gun.On July 16, 2013, the victim pulled a gun on the defendant while the defendant was with his children at a nearby park.

Unlike the victim, Jackson had no issue with the defendant, and the two interacted on four or five occasions in the two weeks prior to the victim's murder.On one occasion, Jackson and the defendant shared a marijuana cigarette and talked for approximately twenty minutes.On another occasion, the two sat together on the porch steps of a property on Sixth Street.Jackson and the defendant also exchanged remarks as they passed by each other on the street.Jackson did not witness the July 15, 2013 altercation, but the next day he was shown a cell phone video recording of the incident.

On the morning of July 17, 2013, at approximately 7:20 a.m., the victim and Jackson were sitting in a car outside the victim's apartment on Sixth Street.The victim sat in the driver's seat with his window rolled down, and Jackson sat next to him in the front passenger seat.The two friends talked about the July 15, 2013 altercation and Jackson cautioned the victim that his dispute with the defendant was unnecessary.The defendant walked up Sixth Street wielding a small black handgun and approached within three feet of the driver's side of the victim's car.The defendant was wearing a black shirt and his face was covered up to the top of his nose, leaving only his eyes and the top of his head exposed.The defendant fired at the victim and then uttered the words "bitch ass n*****."Jackson told the defendant to "chill" and that he had "proven his point."The defendant, however, fired more bullets, hitting the victim in the left upper neck, left upper shoulder, back and chest.The defendant then fled.

Jackson also fled because there were outstanding warrants for his arrest and he feared becoming involved with the police.As Jackson ran east toward Bunnell Street through the backyards of houses on Sixth Street, he said aloud, "I'm going to jail."He then heard a voice reply, "[m]y bad my n*****," and realized that the defendant, whose face was no longer covered, was running close behind him.The defendant continued running in the direction of Stratford Avenue.

A juvenile standing in the backyard of a house on Bunnell Street, which abutted the backyards of houses on Sixth Street, heard the gunshots and called 911.Shortly thereafter, police and emergency response personnel found the unconscious victim, who was later pronounced dead at Bridgeport Hospital.The police recovered four spent bullets from the victim's car, four spent casings in the roadway and a white tank top in the grass near the victim's car.A firearm never was recovered.As part of his investigation, Detective Robert Winkler obtained surveillance footage from cameras posted by the Bridgeport Police Department at three intersections along Stratford Avenue.²

On July 25, 2013, Jackson was arrested on unrelated charges and interviewed by Detectives Winkler and

Dennis Martinez about the victim's murder.Initially, Jackson was reluctant to provide the detectives with the assailant's identity.Jackson stated that he had been sitting in the victim's car for approximately four to seven minutes before the assailant ran up to the car and started shooting at the victim.He described the victim's assailant as a black male at least six feet, three inches tall, wearing a black shirt and a scarf or shirt covering most of his face, and wielding a black small caliber gun.Jackson stated that as he was running to his girlfriend's apartment on Bunnell Street, the assailant, whose face was still covered, ran by him and continued in the direction of Stratford Avenue.Later in the interview, Martinez inadvertently used the defendant's street name, "Sleep," instead of the victim's street name, "Stretch."Jackson was shown portions of the Stratford Avenue surveillance video and he confirmed that the man in the video was the person he recognized as the assailant.He claimed, however, that he did not know the assailant's name.Jackson stated that he had seen the assailant on Sixth Street previously and would recognize him if he saw him again.He also stated that he knew the assailant's voice because he had heard it before and that he could match that voice to a face.

The detectives conducted a blind sequential photo array of eight photographs.When he was shown the seventh photograph, that of the defendant, Jackson became quiet and asked to return to his cell multiple times.The detectives urged Jackson to tell them what he knew and whether the seventh photograph was the assailant.Jackson asked to speak alone with Winkler and attempted to negotiate a release on a promise to appear on his unrelated charges.Winkler stated multiple times that he could try to help but could not promise anything.Jackson admitted that he knew the defendant was the assailant all along, identified him in the seventh photograph in the array and stated that Martinez already had used his street name, "Sleep."

On July 30, 2013, the defendant was arrested and charged with murder and criminal possession of a pistol or revolver.Prior to trial, the defendant moved to suppress Jackson's out-of-court identification and any subsequent in-court identification of the defendant, claiming, inter alia, that the procedures used by the detectives during the out-of-court identification were unnecessarily suggestive, and that, as a result, any in-court identification would be tainted by the improper out-of-court identification.In response, the state contended that it did not seek to offer Jackson's out-of-court identification of the defendant at trial.

A seven day jury trial commenced on September 24, 2014.During trial, outside the presence of the jury, the court conducted a two part evidentiary hearing on the defendant's motion to suppress.After reviewing Jackson's videotaped interview and hearing testimony from Winkler,³the court determined that the police identification procedure was unnecessarily suggestive and suppressed the out-of-court identification.The court reasoned that Martinez's inadvertent use of the defendant's street name and "showing [Jackson] the surveillance video that only contained [the defendant was] tantamount to making a suggestion as to who should be picked out of the [photographic] array."

The court then addressed the reliability of any subsequent in-court identification.The court heard testimony from Jackson, who stated that he knew that the defendant was the shooter prior to the interview, but did not want to provide that information to the detectives.Jackson testified that there weren't "too many different people ... on Sixth Street" and that he"[paid] attention to who was out there."It was important for Jackson, who was involved in the sale of narcotics, to know who the regular people were, "because other people could be snitches."Jackson further testified that he had seen the defendant on Sixth Street four or five times in the two weeks prior to the shooting, and had become familiar with both the defendant's appearance and voice.Jackson indicated that he would have known that the defendant was the shooter even if he had not seen him a second time as he was running away.The court then asked Jackson the following questions:

"The Court: Sir, you were shown some video by the detectives that was taken from a street pole camera that day.Is that right?

"[Jackson]: Yes.

"The Court: Did that video influence or plant the idea in your mind that [the defendant] was the shooter?

"[Jackson]: No.

"The Court: How sure are you of that?

"[Jackson]: A hundred percent.

"The Court: And did Detective Martinez, using the name Sleep while he was interviewing you, did that influence your identification of the defendant here in court as the shooter of [the victim]?

"[Jackson]: No."

On the basis of Jackson's testimony, the court ruled that "the state[had] established by clear and convincing evidence that under...