State v. Sumler

• Decision Date: 20 December 2022
• Docket Number: AC 43024
• Parties: STATE of Connecticut v. Jamal SUMLER
• Court: Connecticut Court of Appeals

217 Conn.App. 51

287 A.3d 211

STATE of Connecticut

v.Jamal SUMLER

AC 43024

Appellate Court of Connecticut.

Argued October 25, 2022

Officially Released December 20, 2022

Naomi T. Fetterman, with whom, on the brief, was Peter G. Billings, New Haven, for the appellant (defendant).

Laurie N. Feldman, assistant state's attorney, with whom, on the brief, were Patrick Griffin and John P. Doyle, Jr., state's attorneys, and Lisa M. D'Angelo, senior assistant state's attorney, for the appellee (state).

Prescott, Suarez and Bishop, Js.

PRESCOTT, J.

This case returns to us on remand from our Supreme Court with direction to consider whether, in light of our Supreme Court's decisions in State v. Bruny , 342 Conn. 169, 269 A.3d 38 (2022), and State v. Gore , 342 Conn. 129, 269 A.3d 1 (2022), the trial court abused its discretion by admitting "testimony of the defendant's former probation officer identifying the defendant [Jamal Sumler] in a still photograph and video surveillance footage ...."¹

State v. Sumler , 345 Conn. 961, 961, 284 A.3d 982 (2022). Having considered the new rule governing the admissibility of opinion testimony identifying an individual in surveillance videos or photographs set forth in Bruny and Gore , we conclude that the trial court did not abuse its discretion by admitting testimony from the defendant's former probation officer with respect to the identity of the defendant in a still photograph and video surveillance footage.² Accordingly, we affirm the judgment of the trial court.

The following relevant facts, which were previously set forth in State v. Sumler , 199 Conn. App. 187, 235 A.3d 576 (2020), vacated in part, 345 Conn. 961, 284 A.3d 982 (2022), or reasonably found by the trial court, and procedural history are relevant to this claim. "On April 6, 2015, the defendant and two other individuals, Dwayne ‘Hoodie’ Sayles and Leighton Vanderberg, were travelling together in a green Ford Focus driven by Vanderberg. The defendant sat in the front passenger seat and was wearing sweatpants, a gray hoodie, and dark sneakers. ...

"The three men drove to Eddy's Food Centre (Eddy's) located at 276 Howard Avenue in New Haven. Once they arrived, the defendant exited the car, while Vanderberg and Sayles remained inside. ... [The defendant] went into Eddy's for a few minutes, returned to the car, and then went back into the store a second time. [An individual, later identified as the defendant, was captured on Eddy's surveillance video footage.] Upon his return to the car the second time, the defendant handed Sayles a pair of black gloves. He also retrieved his revolver and put it in the waistband of his sweatpants.

"Thereafter, the three men drove to the Fair Haven section of New Haven. Vanderberg pulled onto Kendall Street toward Fulton Terrace and parked the car, intending to smoke ‘dutches’.³ Not having enough cigars, someone suggested that they buy more cigars from a nearby store. The defendant and Sayles then exited the vehicle and walked up Fulton Terrace, with the defendant a few steps in front of Sayles, while Vanderberg remained in the car. The defendant entered the Pay Rite convenience store (Pay Rite) connected to a CITGO gas station located at 262 Forbes Avenue.

"Pay Rite surveillance videos captured the defendant, wearing a black mask, black gloves, a gray hoodie, gray sweatpants, and dark sneakers, walk to the counter and point a gun at the clerk, Sanjay Patel, the victim in this case. While pointing the gun at the victim, the defendant walked behind the counter. The surveillance footage captured a second individual ... later determined to be Sayles ... entering the store and walking up to the counter. The victim struggled with the defendant and picked up a wooden stool. Sayles then pulled out a gun, aimed it at the victim, fired, and put the gun away in his hoodie pocket. The defendant, pointing his gun at the victim, used his other hand to pass items over the counter to Sayles, who put the items in his pocket before turning and leaving the store. As the defendant bent down to take ... items, the victim hit him on his upper body with the stool. The defendant then shot the victim and ran out of the store. The victim subsequently died from his injuries." (Footnote omitted; footnote in original.) Id., at 190–91, 235 A.3d 576.

"On April 17, 2015, detectives met with [Jayme] DeNardis, the defendant's previous probation officer. DeNardis viewed a still photograph from video surveillance footage captured from Eddy's on April 6, 2015. She signed the photograph and identified the defendant as the individual in the footage and as being one of her probationers. The defendant filed a motion in limine to preclude DeNardis from testifying at trial about the identity of the individual captured on surveillance video footage from Eddy's.⁴ He claimed that her identification of him in the video [and the photograph] would, pursuant to [ State v. Finan , 275 Conn. 60, 881 A.2d 187 (2005), overruled by State v. Gore , 342 Conn. 129, 269 A.3d 1 (2022) ], constitute improper testimony as to ‘the ultimate issue in question: identity.’

"A hearing was held on October 26, 2017, during which the state presented DeNardis [as a witness] .... The defendant reiterated his objection to the admission of DeNardis’ proffered testimony on the basis that it constitutes her opinion about the ultimate issue of fact—whether he was the individual on the surveillance video committing the crimes with which he was charged—which is prohibited under Finan .

"The court denied the defendant's motion in limine, concluding that the proffered evidence is not ‘tantamount to a legal opinion about the defendant's criminal culpability.’ "⁵ (Footnote added; footnotes omitted.) State v. Sumler , supra, 199 Conn. App. at 200, 235 A.3d 576. In denying the defendant's motion in limine, the court made several factual determinations regarding DeNardis’ familiarity with the defendant. The court found that DeNardis met with the defendant face-to-face fifty-nine times over a period of one year and ten months. These meetings took place at the defendant's home, DeNardis’ office, and police stations. DeNardis met with the defendant as often as five to six times per month and the meetings averaged between five and twenty minutes. DeNardis last saw the defendant on April 1, 2015, and identified the defendant only sixteen days later on April 17, 2015.⁶ On the basis of these circumstances, the court concluded that "her identification is reliable under the totality of circumstances based on her essentially unchallenged level of contact with the defendant over an almost two year time period."

"At trial, DeNardis testified, among other things ... that on April 17, 2015, she identified the defendant in a still photograph shown to her by New Haven police. She was shown at trial two segments from the surveillance video at Eddy's and identified the defendant as the person in the footage. At the conclusion of the trial, the court instructed the jury that ‘identification is a question of fact for you to decide, taking into consideration all of the evidence that you have seen and heard in the course of the trial.’ " State v. Sumler , supra, 199 Conn. App. at 201, 235 A.3d 576.

"[The] jury found [the defendant] guilty of felony murder in violation of General Statutes § 53a-54c, murder in violation of General Statutes § 53a-54a (a), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a), and the trial court, Vitale , J. , found him guilty of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1)." Id., at 189, 235 A.3d 576. The defendant appealed from the judgment of conviction, claiming that the court "(1) improperly failed to recuse itself from the defendant's trial because [the trial judge] previously had signed warrants for the defendant's arrest and for the search of his home, (2) abused its discretion by allowing opinion testimony of the defendant's identity on video surveillance footage [and in a still photograph], and (3) improperly denied the defendant's motion to suppress statements that he made to a police officer while being transported to the police department." Id., at 189–90, 235 A.3d 576.

This court affirmed the judgment of conviction, concluding that (1) the defendant's claim that the court improperly failed to recuse itself was unpreserved; (2) the court did not abuse its discretion by allowing the defendant's probation officer to identify the defendant in the still photograph and video surveillance footage at trial because, according to the test set forth in Finan and as applied by this court to a similar factual scenario in State v. Holley , 160 Conn. App. 578, 127 A.3d 221 (2015), rev'd on other grounds, 327 Conn. 576, 175 A.3d 514 (2018), the probation officer's identification of the defendant did not constitute an opinion on the ultimate issue in the case; and (3), the court did not improperly deny the defendant's motion to suppress certain evidence. State v. Sumler , supra, 199 Conn. App. at 195, 202–204, 235 A.3d 576. Following the release of this court's decision, the defendant filed a petition for certification to appeal with our Supreme Court on September 3, 2020.

After the defendant filed his petition for certification to appeal our decision in State v. Sumler , supra, 199 Conn. App. 187, 235 A.3d 576, our Supreme Court decided Gore and Bruny . Gore effectively "amend[ed] § 7-3 (a) of the Connecticut Code of Evidence to incorporate an exception to the ultimate issue rule for lay opinion testimony that relates to the identification of persons depicted in surveillance video or photographs ...."⁷

State v. Gore , supra, 342 Conn. at 133, 269 A.3d 1. Gore overruled Finan and set forth new factors for courts to consider when determining whether opinion testimony regarding...