State v. Thompson, (AC 22724)

• Court: Appellate Court of Connecticut
• Writing for the Court: LAVERY, C. J.
• Citation: 839 A.2d 622,81 Conn. App. 264
• Parties: STATE OF CONNECTICUT v. JERRY THOMPSON
• Decision Date: 27 January 2004
• Docket Number: (AC 22724)

81 Conn. App. 264
839 A.2d 622

STATE OF CONNECTICUT
v.
JERRY THOMPSON

(AC 22724)

Appellate Court of Connecticut

Argued September 15, 2003

Officially released January 27, 2004

Lavery, C. J., and West and Cretella, Js.

81 Conn. App. 265

Suzanne Zitser, assistant public defender, for the appellant (defendant)

Rita M. Shair, senior assistant state's attorney, with whom were James E. Thomas, state's attorney, and, on the brief, Robin Cutuli, assistant state's attorney, for the appellee (state).

81 Conn. App. 266

Opinion

LAVERY, C. J.

The defendant, Jerry Thompson, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (3) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). On appeal, the defendant claims that the court improperly (1) admitted into evidence certain out-of-court identifications, (2) denied his motions to dismiss and for a mistrial on the ground of late disclosure of information by the state, (3) marshaled evidence during its charge to the jury and (4) denied his motion to sever or, in the alternative, to bifurcate the charge of criminal possession of a firearm from the assault charge. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 15, 2000, the victim, Wesley Gray, was playing basketball in Ramon Quiros Park in Hartford. The victim observed a red vehicle circling the area. After several men exited the vehicle, the driver parked it behind some bushes. The victim observed that the men were wearing dark colored sweatshirts, but he did not know any of them and did not speak to them.

The victim stopped playing basketball to speak with an individual whom he knew only as "Ro Dog." After

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"blanking out" for a moment, the victim awoke to find himself lying on the ground. He felt a burning sensation in his body, but could no longer feel his legs. Several firefighters from a nearby fire station arrived and provided first aid to the victim, who subsequently was taken by ambulance to a hospital for treatment. The victim suffered from various gunshot wounds and, as a result of a shotgun pellet fragment in his spine, lost the use of his legs

Marty Miller, an officer with the Hartford police department, arrived at the park, found the victim lying on the ground and observed at least one gunshot wound. Miller assisted the victim and accompanied him to the hospital, where he seized a shotgun pellet that had been removed from the victim's body, as well as articles of clothing worn by the victim.

Edwin Diaz, a firefighter with the Hartford fire department, after hearing gunshots, went to the rear of the fire station to investigate. He observed the defendant carrying a shotgun. Diaz ducked behind a car and retreated back to the fire station. He continued to observe the defendant through a window. Diaz again went outside and watched the defendant, who no longer was carrying the shotgun, from a distance of fifteen to twenty feet. The defendant climbed a fence and fled while Diaz and Lieutenant Miguel Sanchez, another firefighter, remained to secure the discarded shotgun. Sanchez also had observed the defendant in the rear of the station carrying the shotgun.

Steven Pileski, a Hartford police officer, was dispatched to the area and received information from various firefighters that the defendant was running through a field. Pileski began to search and observed the defendant fleeing, wearing a blue hooded sweatshirt. Pileski relayed that information and his location to other officers

81 Conn. App. 268

and commenced pursuit. Pileski soon lost sight of the defendant

Brian Foley, a Hartford police officer, also was dispatched to the scene and began searching for the defendant. Foley heard a broadcast of Pileski's description of the defendant and saw a silhouette of a body in the bushes. As he approached the bushes, the defendant fled. Foley pursued the defendant until he was apprehended by other officers. Foley then returned to the bushes and found the blue sweatshirt that had been discarded by the defendant. Edward Foster, a Hartford police officer, also responded to the scene and, on the basis of Pileski's radio broadcast, began searching for the defendant. He followed the defendant into a dead-end alley and placed him in custody.

The defendant was charged with assault in the first degree and criminal possession of a firearm.¹ The jury convicted the defendant of the lesser included offense of assault in the second degree and criminal possession of a firearm. The court sentenced the defendant to an effective term of eight years incarceration and two years of special parole. This appeal followed.

I

The defendant's first claim is that the court improperly admitted into evidence certain out-of-court identifications of him. Specifically, the defendant argues that the identifications by Diaz and Sanchez were made as a result of an unnecessarily suggestive procedure and were unreliable under the totality of the circumstances. The state concedes that the identifications were unnecessarily suggestive, but argues that the identifications were reliable under the totality of the circumstances. We agree with the state.

81 Conn. App. 269

At the outset, we set forth the relevant legal principles and standard of review that guide our review of that issue. "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. . . . [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." (Citation omitted; internal quotation marks omitted.) State v. Salmon, 66 Conn. App. 131, 135, 783 A.2d 1193 (2001), cert. denied, 259 Conn. 908, 789 A.2d 997 (2002)

"[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. . . .

"An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification. . . . The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the

81 Conn. App. 270

resulting identification was unreliable." (Citation omitted; internal quotation marks omitted.) State v. Colon, 70 Conn. App. 707, 720-21, 799 A.2d 317, cert. denied, 261 Conn. 933, 806 A.2d 1067 (2002).

"The reliability of an identification procedure is considered under various factors, such as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of [his] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977) . . . ." (Internal quotation marks omitted.) State v. Davis, 61 Conn. App. 621, 631, 767 A.2d 137, cert. denied, 255 Conn. 951, 770 A.2d 31 (2001); see also State v. Davis, 198 Conn. 680, 683-84, 504 A.2d 1372 (1986). Put another way, "[r]eliability is the linchpin in determining the admissibility of the identification testimony . . . ." (Internal quotation marks omitted.) State v. Jackson, 73 Conn. App. 338, 382, 808 A.2d 388, cert. denied, 262 Conn. 929, 814 A.2d 381 (2002). With the foregoing principles in mind, we address each of the challenged identifications in turn.

A

Edwin Diaz

The following additional facts are necessary for the resolution of the defendant's claim. On June 14, 2001, the defendant filed a motion to suppress the identification testimony. An evidentiary hearing was held on October 15, 2001, outside the presence of the jury.

At the hearing, Diaz testified that after he had arrived at the fire station on June 15, 2000, he heard gunshots and proceeded to the rear of the building. There was

81 Conn. App. 271

still daylight at that time. He observed "a young black male, slender in build" wearing "dark colored clothing." That person was carrying a shotgun. Diaz stated that he got a "quick glance" at the individual's face. Diaz retreated to the kitchen in the fire station. The kitchen faced the rear of the building, so Diaz was able to observe the individual through a window. Diaz then proceeded to go back outside and observe the individual as he came toward him. Diaz ducked behind a car and when he looked back, the individual was climbing a fence without the shotgun.

Diaz proceeded to secure the shotgun and turned it over to a police officer. He also provided the police officer with a general description of the individual who had been carrying the shotgun. Later that evening, a police officer arrived at the fire station and...