State v. Sanchez

• Decision Date: 19 April 2011
• Docket Number: No. 31735.,31735.
• Citation: 15 A.3d 1182,128 Conn.App. 1
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticutv.Angel Luis SANCHEZ.

128 Conn.App. 1

15 A.3d 1182

STATE of Connecticut

v.Angel Luis SANCHEZ.

No. 31735.

Appellate Court of Connecticut.

Argued Sept. 15, 2010.Decided April 19, 2011.

Katherine C. Essington, special public defender, for the appellant (defendant).Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and David L. Zagaja, senior assistant state's attorney, for the appellee (state).BEACH, ROBINSON and BORDEN, Js.BEACH, J.

The defendant, Angel Luis Sanchez, appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a–92 (a)(2)(A), kidnapping in the first degree in violation of General Statutes § 53a–92 (a)(2)(B),¹ attempt to commit robbery in the first degree in violation of General Statutes §§ 53a–134 (a)(3) and 53a–49, and assault in the first degree in violation of General Statutes § 53a–59 (a)(1). On appeal, the defendant claims that the court erred in (1) denying his motion to suppress evidence of his pretrial identification by the victim, (2) failing to instruct the jury, sua sponte, concerning the risk of misidentification in accordance with State v. Ledbetter, 275 Conn. 534, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006), and (3) denying his motion for a judgment of acquittal with respect to attempted robbery and kidnapping because of insufficient evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 18, 2003, Nancy Tong was working alone at Wil Mart, a convenience store in Manchester. At approximately 11 a.m., a man who was later identified as the defendant entered the store. The defendant removed some merchandise from the shelves, including paper towels, boxes of trash bags, cleaning products, duct tape and a pail, and placed the merchandise on the store counter. Although Tong placed the merchandise into bags, the defendant did not pay for the merchandise. The defendant instead left the store, stood for a while outside and then came back inside the store. After the defendant repeated this behavior a couple of times, Tong asked the defendant if he planned to pay for the items. The defendant responded that he worked for CJ Landscaping and was waiting for his boss to arrive and pay for the merchandise. Tong responded, “okay,” because she was familiar with the landscaping company and the owners of the company, who lived behind the Wil Mart store. Tong was also familiar with the defendant because she had seen him three times inside the Wil Mart store over the past few weeks.

Tong observed the defendant repeatedly exit the store, stand alone outside and reenter the store. At approximately 1 p.m., while Tong was positioned near the cash register and the bagged merchandise for which the defendant had not yet paid, he approached Tong and told her that he was armed with a gun and that he wanted her to go to the back of the store. As the defendant grabbed Tong and pushed her toward the back of the store, Tong told him that if he wanted money, she would give money to him. The defendant told Tong that he wanted to tie her up. While in the back of the store, the defendant began to stab Tong with a knife. Tong fought back, attempting to grab the knife. Two customers then entered the store and began screaming and asking what was happening. The defendant dropped the knife and fled.

Tong sought assistance at a nearby restaurant and was thereafter taken to a nearby hospital where she underwent surgery. Paul Lombardo and James Graham, detectives with the Manchester police department, arrived at the hospital at approximately 9:30 p.m. and interviewed Tong. Tong provided the detectives with a written statement, which included a physical description of the perpetrator. The state forensic laboratory found a single latent fingerprint on a roll of duct tape that the defendant had placed on the store counter. A photograph of the fingerprint was entered into a computer program, known as the automated fingerprint identification system, which is a national database that matches latent fingerprints found at crimes scenes with fingerprint samples taken from individuals when they are arrested and supplies a list of “candidates” whose fingerprints are a possible match. The database system did not yield, at that time, any possible matches to the fingerprint found on the duct tape. In November, 2003, the police suspended the investigation.

In July, 2004, Lombardo revived the investigation. During that month, Tong worked with Lombardo to develop a sketch of the perpetrator. Lombardo concluded that Tong had “very good recall of what her assailant looked like.” In October, 2004, the state forensic laboratories contacted Lombardo and informed him that the computer database revealed possible matches to the fingerprint found on the duct tape. Michael J. Supple, a fingerprint examiner, matched the fingerprint to the defendant's based on seven shared points of identification. Supple testified at trial that there were additional shared points of identification, but seven is all that is needed for an identification.

In November, 2004, Tong went to the Manchester police station, and Lombardo showed her a photographic array that he had compiled. The photographic array consisted of the most recent photograph that Lombardo had of the defendant as well as photographs of seven other individuals. All eight photographs depicted individuals with facial hair. Lombardo noticed that Tong was having difficulty and asked her if she was “having a problem” because the perpetrator was clean shaven and the individuals in the photographic array all had facial hair. Tong responded affirmatively and did not make an identification from the first array. Subsequently, Lombardo spent fifteen to twenty minutes compiling a second photographic array. In compiling the second photographic array, Lombardo gathered together photographs of individuals with facial features similar to those of the defendant. The second photographic array consisted of eight individuals, including one photograph of the defendant. All individuals in this photographic array appeared relatively clean shaven. The defendant was the only individual whose photograph was included in both photographic arrays. The photograph of the defendant that was used in the second photographic array was different from the photograph of him that was used in the first photographic array. Tong selected the defendant's photograph from the second array then signed and dated the photograph.

Following a jury trial, the defendant was convicted of kidnapping in the first degree, attempted first degree robbery and assault in the first degree. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erred in denying his motion to suppress evidence of Tong's pretrial identification of him because it violated his right to due process under the state and federal constitutions.² We disagree.

In August, 2008, prior to the start of trial, the defendant filed a motion to suppress “any pretrial or in court identification of the defendant which the [s]tate intends to use at ... trial.” During trial, but outside the jury's presence, the court held an evidentiary hearing on the motion. In denying the motion to suppress, the court determined that “the procedure may be suggestive in that [in] the second array some of the people do look younger” than the defendant. The court, however, determined that the identification was reliable because at the time of the incident Tong had the opportunity over the course of several hours to see the defendant during midday when there was plenty of light and was able to converse with him.

We set forth our standard of review. “[B]ecause 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.... [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.... Furthermore, [w]e will reverse the trial court's ruling [on evidence] only where there is an 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 fact-bound 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.” Citation omitted; internal quotation marks omitted.) State v. Ledbetter, supra, 275 Conn. at 547–48, 881 A.2d 290.

“[R]eliability is the linchpin in determining the admissibility of identification testimony.... Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).... [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.... 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 ...