State v. Sanchez

• Court: Connecticut Supreme Court
• Writing for the Court: HARPER
• Citation: State v. Sanchez, 308 Conn. 64, 60 A.3d 271 (Conn. 2013)
• Decision Date: 05 March 2013
• Docket Number: No. 18799.,18799.
• Parties: STATE of Connecticut v. Angel Luis SANCHEZ.

308 Conn. 64

60 A.3d 271

STATE of Connecticut

v.Angel Luis SANCHEZ.

No. 18799.

Supreme Court of Connecticut.

Argued Oct. 22, 2012.

Decided March 5, 2013.

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).

Charles D. Ray, Hartford, Matthew A. Weiner and Shawn S. Smith filed a brief for the Connecticut Innocence Project as amicus curiae.

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and HARPER, Js.^*

HARPER, J.

In State v. Ledbetter, 275 Conn. 534, 575, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006), this court determined that, because of an increased risk of misidentification when an eyewitness is not advised that the perpetrator of a crime may or may not be present in the identification procedure, we would exercise our supervisory authority to require trial courts to provide an instruction to the jury regarding this risk in cases in which the identification procedure administrator had failed to provide such a warning, unless no significant risk of misidentification existed ( Ledbetter instruction). The sole issue in this certified appeal is whether the Appellate Court properly concluded that the trial court's failure to give a Ledbetter instruction, sua sponte, did not present the type of extraordinary circumstance that warrants reversal under the plain error doctrine. State v. Sanchez, 301 Conn. 919, 21 A.3d 465 (2011). The defendant, Angel Luis Sanchez, appeals, upon our grant of certification, from the Appellate Court's judgment affirming the trial court's 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 § 53a–92 (a)(2)(B), 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). State v. Sanchez, 128 Conn.App. 1, 3, 15 A.3d 1182 (2011). We affirm the judgment of the Appellate Court.

The Appellate Court opinion sets forth the following facts that the jury reasonably could have found. “On July 18, 2003, Nancy Tong was working alone at Will Mart, a convenience store in Manchester. At approximately 11 a.m., a man ... entered the store. The [man] ¹ 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 [man] did not pay for the merchandise. The [man] instead left the store, stood for a while outside and then came back inside the store. After the [man] repeated this behavior a couple of times, Tong asked the [man] if he planned to pay for the items. The [man] 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 Will Mart store. Tong was also familiar with the [man] because she had seen him three times inside the Will Mart store over the [previous] few weeks.

“Tong observed the [man] 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 [man] had not yet paid, [the man] 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 [man] 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 [man] told Tong that he wanted to tie her up. While in the back of the store, the [man] 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 [man] 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 descriptionof the perpetrator. The state forensic laboratory found a single latent fingerprint on a roll of duct tape that the [perpetrator] 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 crime 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, [following a conversion to a more technologically advanced fingerprint identification computer program] 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.” Id., at 3–6, 15 A.3d 1182.

The record reveals the following additional facts that the jury reasonably could have found and the relevant procedural history. Lombardo interviewed the defendant, after apprising him of his rights. The defendant acknowledged that he had worked for CJ Landscaping for a couple of months in the summer of 2003. When asked whether he was responsible for stabbing Tong, the defendant initially claimed that he never had been to the Manchester Will Mart. As the interview progressed, the defendant stated that he might have been at the Will Mart to buy some cigarettes and later stated that the only time he ever had been in any store in Manchester was a long time ago, to buy cigarettes. After Lombardo told the defendant that his fingerprint had been identified from evidence at the scene, and then asked the defendant whether he remembered that he had not worn gloves on the day of the incident, the defendant appeared visibly upset. Shortly thereafter, the defendant stated that he would not talk any more and ran out of the interview room.

Prior to trial, the defendant filed a motion to suppress any pretrial or in-court identification of him, claiming that the identification procedure had been unnecessarily suggestive, that an in-court identification would be irretrievably tainted by the prior illegal identification, and that any identification would be unreliable. The court deferred ruling on the motion until trial. In an evidentiary hearing on the motion held shortly after the state commenced presentation of its case, the trial court acknowledged that the defendant's photograph had been included in both arrays and that the procedure may have been suggestive in that some of the people pictured in the second array looked younger than the defendant. The court nonetheless determined that the identification had been reliable because, at the time of the incident, Tong had had the opportunity over the course of several hours to observe the perpetrator when there was plenty of light and to converse with him. Accordingly, the trial court denied the motion to suppress. Thereafter, the state introduced evidence regarding Tong's identification of the defendant as the perpetrator at the police station and in court.

The jury found the defendant guilty of two counts of kidnapping in the first degree, one count of attempt to commit robbery in the first degree and one count of assault in the first degree. The trial court merged the two kidnapping convictions ...