State v. Felder

668 A.2d 382, 39 Conn. App. 840, 1995 Conn. App. LEXIS 515
CourtConnecticut Appellate Court
DecidedDecember 19, 1995
Docket13501; 13503
StatusPublished
Cited by6 cases

This text of 668 A.2d 382 (State v. Felder) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Felder, 668 A.2d 382, 39 Conn. App. 840, 1995 Conn. App. LEXIS 515 (Colo. Ct. App. 1995).

Opinion

HENNESSY, J.

The defendant, Bruce Felder, appeals from a judgment of conviction, after a jury trial, of four counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and four counts of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3).1 The court sentenced the [842]*842defendant to fourteen years of incarceration on each of the robbery counts and eight years on each of the larceny counts with all sentences to run concurrently.

The defendant claims that the trial court improperly (1) suppressed witnesses’ prior statements during a suppression hearing and at trial, (2) interpreted Practice Book § 752 and (3) denied a motion to suppress evidence of identifications of the defendant made by two witnesses. All three claims relate primarily to the rulings of the trial court on the defendant’s motion to suppress identification testimony. We affirm the judgment of the trial court.

The court found the following facts during the suppression hearing. Eraina Villani, Tamara Barriga, Kim Guerrette and Jessica Symonovich became lost while driving in Hartford and requested directions from a man standing near Pulaski Circle. The man drew a gun, entered the rear seat of the car and demanded that the women give him their money and jewelry. An interior light was lit, and the women had a clear view of the man’s face during the five to twenty minutes that he was in the car. The man then ordered the women out of the car, demanded the key from the driver and drove away. The police arrived at the scene within minutes, and the victims described their assailant to the police as a black male, approximately five feet seven inches tall and one hundred fifty pounds, with thin facial hair, consisting of a mustache, beard or goatee, a medium to dark complexion, a crooked nose and high protruding facial bones.

Seven days later, the women met at the Hartford police station to give written statements and to look at [843]*843photographs in an attempt to identify their assailant. The police gave Barriga, Guerrette and Symonovich books of photographs to look at while Villani was in a separate room. The police showed Villani eight photographs of black males, similar in age and general appearance. She positively identified a picture of the defendant as being of the person who had committed the robbery. After viewing several pages of photographs, Symono-vich, who was seated at a conference table with Barriga and Guerrette, also saw a photograph of the defendant and identified it as being of the man who had robbed them. Barriga and Guerrette then viewed the photograph picked by Symonovich and identified it as being of the perpetrator.

I

We address the defendant’s first two claims together. The defendant first claims that the trial court improperly denied his request at the suppression hearing for the production of prior statements of the four witnesses pursuant to Practice Book § 752.2 During the cross-examination of Symonovich, the defendant requested production of any prior statements Symonovich had made. The state acknowledged possession of a statement, but argued that the statement was not discoverable prior to the witness’ testimony on direct examination at trial. The court agreed and denied the defendant’s request.3

Relying on Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the defendant argues [844]*844that his due process rights were violated because the prosecution suppressed evidence that was material and favorable to him. The defendant argues that the statements are material and favorable because each of the witnesses identified him because of his broken or disjointed nose, but three of the four witnesses testified that they did not include this facial trait in their prior statements to the police. The defendant claims that he was denied a fair suppression hearing and trial because the court did not order the prosecution to disclose these statements at the suppression hearing.

The state argues (1) that Practice Book § 752 does not require the state to produce statements of a witness in its possession that relate to the subject matter about which the witness has testified until the witness has been called by the state and testified on direct examination at trial, and (2) that because the evidence was disclosed during the trial, it could not be considered suppressed as that term is used in Brady. The defendant asserts that a literal interpretation of § 752, which does not require the state to produce prior statements of witnesses until trial, leads to unworkable and unfair results in that fairness requires that a defendant have access to statements at a potentially dispositive hearing.

At the suppression hearing, the defendant relied solely on the text of § 752 to support his request for Symonovich’s prior statement to the police. “The rules of statutory construction apply with equal force to Practice Book rules. State v. Cook, 183 Conn. 520, 521, 441 A.2d 41 (1981). ‘Where the meaning of a statute [or rule] is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction.’ ...” (Citations omitted.) Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984). Section 752, however, clearly refers to a witness’ testimony at trial, not to pretrial motion hearings. Fur[845]*845thermore, this issue was addressed and settled in State v. Davis, 175 Conn. 250, 397 A.2d 1347 (1978). In Davis, our Supreme Court stated that “[sjection 533N [now § 752] specifically limits the availability of such a statement ‘until the witness has testified upon direct examination on the trial of the case.’ ” (Emphasis in original.) Id., 252; see also State v. Anonymous (83-FG), 190 Conn. 715, 733 n.13, 463 A.2d 533 (1983) (“§ 752 applies only after a witness has testified at a trial and is inapplicable to a pretrial hearing on a motion to suppress”). In addition, this court has held that a defendant has no right to statements under § 752 if the witness has not testified at trial. State v. Cardona, 6 Conn. App. 124, 128, 504 A.2d 1061 (1986).

A hearing on a motion to suppress identification is not potentially dispositive because such a motion, even if granted, would not terminate the prosecution. Unlike a finding of no probable cause, which deprives the trial court of jurisdiction over the defendant’s person; State v. Greenfield, 228 Conn. 62, 73, 634 A.2d 879 (1993); the granting of a motion to suppress identification has no such effect. Here, the state produced the statements at trial in accordance with the requirements of § 752, and the defendant used the statements in his cross-examination of the state’s witnesses at trial.

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Related

State v. Davis
767 A.2d 137 (Connecticut Appellate Court, 2001)
Felder v. Barbieri, No. Cv 94-0362227 S (Jan. 21, 1999)
1999 Conn. Super. Ct. 537 (Connecticut Superior Court, 1999)
State v. Lindstrom
702 A.2d 410 (Connecticut Appellate Court, 1997)
Walters v. Homestaff Health Care, No. Cv95 0146961s (Feb. 8, 1996)
1996 Conn. Super. Ct. 1428-QQQ (Connecticut Superior Court, 1996)
State v. Felder
670 A.2d 1306 (Supreme Court of Connecticut, 1996)
Bridgeport Hyd. v. Col. Gardens Condo., No. Cvbr-9510-02902 (Jan. 26, 1996)
1996 Conn. Super. Ct. 1267-WW (Connecticut Superior Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
668 A.2d 382, 39 Conn. App. 840, 1995 Conn. App. LEXIS 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-felder-connappct-1995.