State v. Torres

• Decision Date: 01 August 2017
• Docket Number: (AC 39796).
• Citation: 175 Conn.App. 138,167 A.3d 365
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Quavon TORRES

175 Conn.App. 138

167 A.3d 365

STATE of Connecticut

v.Quavon TORRES

(AC 39796).

Appellate Court of Connecticut.

Argued February 15, 2017

Officially released August 1, 2017

Jennifer B. Smith, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Patrick Griffin, state's attorney, Gary Nicholson, New Haven, supervisory assistant state's attorney, and Michael Dearington, New Haven, former state's attorney, for the appellee (state).

Lavine, Keller and Bishop, Js.

BISHOP, J.

The defendant, Quavon Torres, appeals from the judgment of conviction, rendered after a jury trial, of murder pursuant to General Statutes § 53a–54a and carrying a pistol without a permit pursuant to General Statutes § 29–35(a). He claims on appeal that an eyewitness' first time in-court identification of him as the shooter should have been excluded pursuant to our Supreme Court's decision in State v. Dickson , 322 Conn. 410, 141 A.3d 810 (2016), cert. denied, ––– U.S. ––––, 137 S.Ct. 2263, ––– L.E.2d ––––, 2017 WL 108128 (June 19, 2017) (No. 16–866).¹ We agree and reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On July 23, 2012, the defendant and two other young men, Marcus Lloyd and Freddie Pickette, were at 541–543 Orchard Street in New Haven, where the defendant's cousin, Tasia Milton, lived. One of them called the victim, Donald Bradley, on the phone to ask for a ride to Farnam Courts, also in New Haven. The victim parked his car, a four door Honda Accord, in the CVS Pharmacy parking lot, across the street from 541–543 Orchard Street, and went inside CVS Pharmacy. While the victim was in the store, the three men entered his car. Pickette sat in the front passenger seat, Lloyd sat in the rear passenger side seat behind Pickette, and the defendant sat in the rear driver side seat. The victim exited CVS and entered his car, sitting in the driver's seat, directly in front of the defendant. Pickette recommended that they go to the Burger King, which was very close to the CVS Pharmacy on Whalley Avenue, to get some food on their way to Farnam Courts.

While in the drive-through line, but before ordering, the victim, then realizing that the defendant was in the car, told him to leave. When the defendant did not leave, the victim got out of the car and walked over to the passenger side. He leaned into the car, either in the front passenger seat, where Pickette was seated, or the rear passenger seat, where Lloyd was seated.² The defendant exited the car and walked toward the victim on the passenger side of the car. The victim was then fatally shot. The defendant, Lloyd, and Pickette exited the car and ran.

The police arrived on the scene at approximately 7:20 p.m., and the victim was transported to the hospital, where he ultimately died from multiple gunshot wounds

. The police were advised he was pronounced dead at 7:51 p.m., and received information that two suspects were inside the house at 541–543 Orchard Street. By 9 p.m., the police had the house surrounded. Eventually, the defendant and Lloyd emerged from the house, and they were arrested. The police obtained a search warrant for the third floor of the building and seized, among other items, a .38 caliber Colt revolver containing two live rounds. The weapon was later identified as the gun from which three of the four bullets found in the victim were fired.³

Several hours after the shooting, two eyewitnesses, Theresa Jones and Lachell Hall, provided statements to the police. Jones reported that she saw the shooting while standing across the street from the Burger King at a Stop & Shop grocery store. She told the police in her initial statement that three black men had been arguing around a car that was parked in the drive-through lane at Burger King, and after the shooting, they ran from the back of the car, past the front of Burger King toward Orchard Street. She was shown a photographic lineup, and identified Pickette, whom she knew, and told the police that the shooter looked like Pickette. She was then shown another photographic lineup, which included the defendant's photograph, and she was unable to identify anyone as the shooter. She described the shooter as thin, about five feet seven or eight inches tall, and wearing a blue shirt.

Hall had been standing outside of a deli near the Burger King at the time of the shooting. She recognized Pickette, her nephew, in the front passenger seat of the vehicle wearing a black T-shirt. She said that the victim got out of the car from the driver's seat and walked around the back of the car, and she recognized him as someone she knew. She told the police that the person in the rear driver's side seat got out of the car, went around the back of the car to the passenger side, and then the shooting began. She was shown a photographic lineup and was unable to identify the shooter, although she identified Pickette's photograph from a separate photographic lineup and told the police that he was not the shooter. She described the shooter as a skinny black male, around five feet seven inches tall, wearing a black T-shirt.

Lloyd told the police that he did not see who shot the victim and that he and Pickette left the car and were walking toward the front of the Burger King when they heard gunshots. He later changed his story and said that he was still in the car when the defendant got out of the car on the driver's side and, without going around to the other side of the car, shot the victim, who was standing on the passenger side of the car. He then chose Pickette from a photographic lineup and wrote "Fred was just in the car." Lloyd chose the defendant from an additional photographic lineup and identified him as the shooter. Pickette gave a statement to the police the day after the shooting and also chose the defendant's picture from a photographic lineup and identified him as the shooter.

Milton, who lived on the third floor of the Orchard Street house, gave a videotaped statement to police at 3:30 a.m. on July 24, 2012. She told police that she was on the front porch of her house with the defendant, Lloyd, Pickette, and the defendant's sister, Amber Torres, when someone came to pick up the three men. She remained on the porch and shortly thereafter heard gunshots. She then ran up to the third floor, and as she was running up the stairs, the defendant and Lloyd came running up behind her. She stated that while running up the stairs with them behind her, she was still hearing gunshots. She told the police that she saw the defendant give Amber the gun, and later testified that Amber had the gun while they were in Milton's bedroom. She also told the police and testified that the defendant told Amber to "do something with it."

The defendant was subsequently charged on July 23, 2012, with murder and carrying a pistol without a permit. Trial began on August 14, 2014. At trial, many witnesses testified, including Jones who, though unable to identify the shooter in a photographic lineup shortly after the incident, identified the defendant as the shooter in court during her testimony. During deliberation, the jury requested to hear a playback of Jones' testimony.

On August 25, 2014, the jury found the defendant guilty of murder pursuant to § 53a–54a and guilty of carrying a pistol without a permit pursuant to § 29–35(a). At sentencing, on November 7, 2014, the defendant moved for a new trial. The court, Blue, J. , denied the motion and sentenced the defendant to forty-five years of incarceration and ten years of special parole on the murder conviction, and five years of incarceration, to run concurrently, on the conviction of carrying a pistol without a permit. The total effective sentence was forty-five years of incarceration and ten years of special parole. This appeal followed.⁴ Additional facts and procedural history will be set forth as necessary.

The defendant claims that Jones' first time in-court identification of him as the shooter should have been excluded pursuant to our Supreme Court's decision in State v. Dickson , supra, 322 Conn. at 410, 141 A.3d 810. In response, the state argues that the defendant waived this claim. We disagree with the state that the claim was waived and agree with the defendant that the identification should have been excluded.

I

We discuss first the state's argument that the defendant waived his claim that Jones' in-court identification of him was unreliable, and, therefore, should have been excluded.

The following additional facts and procedural history are relevant to our analysis. Almost two years prior to trial, on October 24, 2012, the defendant's original counsel filed a motion to suppress "any out-of-court and in-court identification of the defendant ...." The court did not rule on this motion, and the defendant subsequently was appointed new counsel. The day before the start of evidence, on August 13, 2014, the court met with defense counsel and the state's attorney to discuss any outstanding motions. Defense counsel did not request that the court rule on the motion to suppress identifications, and the court did not rule on it. Thereafter, the trial began and at the time Jones made the in-court identification, the defendant did not object to the identification. On the basis of these two occurrences, the state argues that the defendant waived his claim that his due process rights were violated by this in-court identification. We disagree.

Waiver is "an intentional relinquishment or abandonment of a known right or privilege. ... It involves the idea of assent, and assent is an act of understanding. ..." (Internal quotation marks omitted.) State v. Kitchens , 299 Conn. 447, 469, 10 A.3d 942 (2011). Implicit waiver "arises from an inference that the defendant knowingly and voluntarily relinquished the right in question." (Emphasis omitted.) Id., at 483, 10 A.3d 942. The court "will indulge every reasonable presumption...