State v. Vazquez

• Decision Date: 08 March 2005
• Docket Number: No. 24262.,24262.
• Citation: 87 Conn.App. 792,867 A.2d 15
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Anderson VAZQUEZ.

867 A.2d 15

87 Conn.App. 792

STATE of Connecticut v. Anderson VAZQUEZ.

No. 24262.

Appellate Court of Connecticut.

Argued November 29, 2004.

Officially released March 8, 2005.

Martin Zeldis, assistant public defender, with whom, on the brief, were Moira L. Buckley, former assistant public defender, and Brad Buchta and Jennifer Neal, certified legal interns, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Joseph T. Corradino, senior assistant state's attorney, for the appellee (state).

DRANGINIS, BISHOP and MIHALAKOS, Js.

DRANGINIS, J.

The defendant, Anderson Vazquez, appeals from the judgment of conviction, following a jury trial, of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a)(4). On appeal, the defendant claims that the trial court improperly (1) failed to charge the jury on the definition of intent, an element of the underlying crime of larceny, (2) admitted into evidence an identification of him that was made pursuant to unnecessarily suggestive police procedures, (3) admitted the fruits of a search conducted in violation of his fourth amendment rights and (4) failed to conduct an inquiry into a possible jury taint. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of September 2, 2002, the defendant placed a telephone call from his home to Pizza Valley restaurant. He ordered a large pepperoni pizza and a two liter bottle of soda, and he directed the delivery to 761 Grand Street in Bridgeport. He purported to give his telephone number to the restaurant. It later was discovered that the number did not correspond to the number that registered on the restaurant's caller identification box.¹ The staff at the restaurant recorded the order, the delivery address, the telephone number given and the cost of the order on the front of the pizza box. The victim, Radesh Kanniganti, drove to the address indicated on the front of the box to deliver the order. He sounded his vehicle's horn at the designated address and then saw someone, whom he later identified as the defendant, approach him from the alley between 761 and 775 Grand Street.² The victim left his car, holding the pizza box and the soda bottle. He tried to hand the defendant the soda bottle, but the defendant grabbed at the pizza box instead. A tussle for the pizza box ensued, and the victim fell to the ground, the defendant having gained possession of the pizza box. The defendant then demanded money from the victim, and the victim noticed that the defendant was pointing a small black gun at him. The victim gave the defendant the $55 in his pocket, and the defendant ran back into the alley. The victim returned to his car and sounded the horn several times. He then returned to the restaurant where he told his employer to call the police because he had been robbed.

The police arrived at the restaurant shortly thereafter and recovered the defendant's telephone number from the caller identification box. The box identified the defendant as the person to whom the number was registered with the telephone company. The police escorted the victim to the police station to make an identification from a computerized array of photographs. They also broadcast a description of the perpetrator over the police radio. The victim, after looking through numerous photographs, identified the defendant as the perpetrator. The police then drove the victim by the defendant's home, where the defendant was being escorted outside by police officers, and the victim again identified the defendant as the perpetrator. Prior to that identification, police had obtained the consent of the defendant's girlfriend to search for a gun in the apartment in which the couple lived. During the search, the police saw the defendant halfway hidden under a bed and seized $55 in cash lying on a dresser near the defendant. The defendant's girlfriend then withdrew her consent, and the police ceased the search of the apartment's interior. The police conducted a search of the backyard and uncovered a Pizza Valley pizza box with two slices of fresh pizza inside. The receipt on the box indicated that it was the stolen pizza box. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly failed to charge the jury on the definition of intent, one of the elements of the crime of larceny.³ The defendant concedes that he did not preserve his claim at trial and requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). His claim is reviewable under Golding because the record is adequate for review and the claim of instructional error is of constitutional magnitude.⁴ See State v. Denby, 235 Conn. 477, 483, 668 A.2d 682 (1995). With regard to the third prong of Golding, the state concedes that the court did not instruct the jury on the definition of intent and focuses its argument instead on the harmlessness inquiry incorporated into Golding's fourth prong.⁵

"[A] jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error...." (Emphasis in original; internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 738, 759 A.2d 995 (2000), citing Neder v. United States, 527 U.S. 1, 17, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In determining whether the defendant contested the omitted element, we do not look at the charge in a vacuum, but rather in the context of the whole trial. See, e.g., State v. Davis, 255 Conn. 782, 794-96, 772 A.2d 559 (2001), State v. Montgomery, supra, 254 Conn. at 738, 759 A.2d 995; State v. Barksdale, 79 Conn.App. 126, 132-37, 829 A.2d 911 (2003); State v. Feliciano, 74 Conn.App. 391, 404-406, 812 A.2d 141 (2002), cert. denied, 262 Conn. 952, 817 A.2d 110 (2003).

The following additional facts, therefore, are necessary for our resolution of the defendant's claim. The defendant presented his case solely through cross-examination of the state's witnesses. The thrust of his defense was that the victim had identified the wrong man as the perpetrator. The defendant argued his theory of the case first during opening statements, when defense counsel stated: "Just briefly, it is the defendant's contention that they have the wrong man. There is a misidentification by [the victim]. And we think the defense can show through cross-examination, as well as other things, that there would be evidence that will lead you to believe that there is a reasonable doubt that the defendant isn't the man." That theory of the case was reflected throughout the cross-examination of the state's witnesses and again during closing arguments to the jury. At no time did the defendant contest the fact that the victim had been robbed; he merely contested that he was the perpetrator. The evidence that a robbery took place was patent and undisputed. Because the defendant did not contest that the victim was robbed and because the jury found beyond a reasonable doubt that the defendant was the perpetrator, the court's failure to instruct on the definition of intent, which pertained to the issue of whether a robbery had occurred and not to the identity of the perpetrator, was harmless beyond a reasonable doubt.

II

The defendant next claims that the court improperly admitted into evidence the victim's prior identification of the defendant as the perpetrator. Specifically, the defendant claims that the police procedures by which the victim identified the defendant were unnecessarily suggestive and, therefore, the admission of the victim's prior identification of the defendant violated the right to a fair trial. Prior to trial, the defendant filed a motion to suppress the victim's out-of-court identification of him on the ground that the procedures used were unnecessarily suggestive. The court held a hearing on the motion during which the victim testified that he had first identified the defendant through a computerized array of photographs at the police station and that he had viewed approximately 300 photographs in that array. That identification process took place within two hours of the robbery, and during the robbery, the victim came within an arm's length of the perpetrator. The victim also testified that the identification procedure at the police station was interrupted when he was taken to a location in Bridgeport to make a one-on-one identification of someone other than the defendant. The victim did not identify that other suspect as the individual who had robbed him. The victim testified that he returned to the computerized array of photographs and identified the defendant as the perpetrator. The police then took him to the defendant's home where he subsequently identified the defendant in a one-on-one procedure. The court heard some conflicting testimony from a police officer who testified that he took the victim to the one-on-one identification of the defendant directly after the one-on-one identification of the other suspect. On further questioning from both the prosecutor and defense counsel, the victim testified that he could not recall exactly when he identified the defendant from the photograph, but he knew he did not view more photographs after he had identified the defendant in the one-on-one identification procedure.

We first set forth our standard of review. "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 or 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...