State v. Pettway

664 A.2d 1125, 39 Conn. App. 63, 1995 Conn. App. LEXIS 390
Connecticut Appellate Court·Decided August 29, 1995·No. 12386·Published·Cited by 13 cases

Opinion

FOTI, J.

The defendant appeals from the judgment of conviction,1 rendered after a jury trial, of robbery in the first degree in violation of General Statutes (Rev. to 1991) § 53a-134 (a) (4) and General Statutes § 53a-133.2 The defendant claims that the trial court improperly (1) denied his motion to suppress identification evidence, (2) failed to grant a mistrial, (3) refused to [65] allow evidence offered by him, and (4) instructed the juiy on the issues of identification, flight and reasonable doubt. The defendant also claims that the evidence was insufficient to support a conviction. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On November 22, 1992, at approximately 10:05 p.m., the victim, Henry Forte, drove to a gas station on North Main Street in Bridgeport and began pumping gas at a self-service pump. At that time, he noticed the defendant and a second man watching people at the cashier’s booth. The two men approached the victim. The defendant took the gas pump from the victim’s hands and dropped it on the ground, saying, “My friend has a gun, we want your money, hand over your wallet.” The second man motioned with his hand under his jacket as if he had a gun. The victim then gave the wallet to the defendant, who removed $260 from it, and the two men then ran from the scene. The robbery was committed in approximately two minutes. The victim called 911 and gave a description of the two men. The police arrived at the scene within ten minutes and, approximately ten minutes later, another police car arrived. When the defendant was removed from the backseat of the second car stating that he had not committed the crime, the victim identified him as the person who had robbed him and also stated that he recognized the defendant’s voice. The victim also identified the shirt the defendant was wearing as being the same type of shirt worn by the robber. The defendant was placed under arrest. He had $110 in his possession, consisting of one $50 bill and three $20 bills. The money taken from the victim consisted of one $50 bill, several $20 bills, one $10, one $5 and some $1 bills.

I

A

The defendant first argues that the trial court improperly denied his motion to suppress the out-of-court iden[66] tification in violation of his constitutional right to due process.3 He claims that the identification should have been suppressed because the procedure was so imper-missibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification in violation of the fifth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution. The trial court denied the defendant’s motion to suppress the victim’s out-of-court identification after a full evidentiary hearing. We agree with the determination of the trial court.

“It is well settled that [in] determining whether identification procedures violate a defendant’s due process rights, the 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 be so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances.” (Internal quotation marks omitted.) State v. Monteeth, 208 Conn. 202, 206, 544 A.2d 1199 (1988). It is the defendant’s burden, as the party moving to suppress identification evidence, to establish that the identification resulted from the use of an unconstitutional procedure by the police. State v. Carswell, 36 Conn. App. 336, 341, 650 A.2d 924 (1994). Our review of the record leads us to conclude that the trial court acted properly in denying the defendant’s motion to suppress.

The facts presented at the hearing and relevant to this issue are as follows. The victim was approached by two men. One man stood directly in front of him and the other, the defendant, stood at the victim’s side. [67] The victim looked directly at the defendant’s face. The gas station was very well lit, and the defendant was approximately two to three feet away from the victim during the robbery. The defendant was wearing a red flannel shirt, which was unbuttoned, over a white T-shirt, and sneakers. The victim believed that the defendant’s pants were jeans. The other man wore a khaki or dark blue-green parka, jeans, and a fur hat. After the two men ran, the victim called the police and gave a description of both of them.

Bridgeport police officer Victor Diaz was patrolling with Sergeant Mathew Cuminotto in the Beardsely Terrace-Trumbull Avenue area, and they responded to a report of an armed robbery at Main and Overland Streets. The broadcast included a description of two black males, one wearing a hat and the other wearing a red shirt. The two men ran down Overland Street toward Beardsely Terrace. Diaz and Cuminotto drove toward the location of the robbery, stopping at the comer of Chopsey Hill and Trumbull Avenue because they observed two men who matched the description walking across the street. One of the men had a fur hat. When the officers approached the two men, the one wearing the hat ran into the woods and the other, the defendant, kept walking toward the police car. The officers pulled alongside the defendant and stopped to talk with him. Cuminotto asked the defendant to go back to the robbery scene with them. The defendant was cooperative and accompanied the police without any resistance. The defendant was frisked for weapons, but was neither handcuffed nor under arrest at that time, and he was wearing a white shirt with a reddish tinge. It had been raining and the defendant appeared to be perspiring.

The officers brought the defendant to the scene in a police car within twenty minutes of the robbery. At that time, the defendant was wearing only a T-shirt and jeans. The police told the victim that they had apprehended a [68] suspect and asked the victim to identify him. When the defendant exited the police car, the victim walked past him and heard him speaking. Once he saw the defendant and recognized his voice, the victim knew that he was the robber. The victim testified that he was positive that the defendant was the robber.

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State v. Pettway, 664 A.2d 1125, 39 Conn. App. 63, 1995 Conn. App. LEXIS 390 (Colo. Ct. App. 1995).

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