State v. Plaza

583 A.2d 925, 23 Conn. App. 543, 1990 Conn. App. LEXIS 400
CourtConnecticut Appellate Court
DecidedDecember 11, 1990
Docket8389
StatusPublished
Cited by10 cases

This text of 583 A.2d 925 (State v. Plaza) 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. Plaza, 583 A.2d 925, 23 Conn. App. 543, 1990 Conn. App. LEXIS 400 (Colo. Ct. App. 1990).

Opinion

Dupont, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). He claims that the trial court improperly (1) denied his motion to suppress identification evidence, (2) allowed the state to elicit hearsay testimony regarding an out-of-court identification, (3) prohibited the defendant from cross-examining the state’s key witness for bias, (4) allowed the admission into evidence of uncharged misconduct, and (5) allowed the state to make an argument in its summation that was not based on the evidence. The defendant further claims that there was insufficient evidence to prove an element of the crime, the sale of a narcotic substance.

The jury reasonably could have found certain relevant facts from the evidence. On the evening of May 22, 1987, Trooper Ramon Valentin of the Connecticut state police entered a Bridgeport bar to make a controlled purchase of narcotics. He was working undercover with the statewide narcotics task force, on loan from the auto theft unit of the state police. After a short period of observing the activity in the bar, Valentin spoke to a person identified only as David, who subsequently was determined to be the defendant. The two conversed for a few minutes, then Valentin told the defendant that he was “interested in some coke or blow.” The defend[545]*545ant reportedly said, “I can take care of that,” and instructed the trooper to follow him to the men’s room.

Once in the men’s room, the defendant pulled a glassine bag containing a white, rock-like substance from his pocket. He placed approximately one half of a gram of the substance into a $20 bill folded like an envelope supplied by Valentin. Valentin paid $50 in unmarked state funds for the substance.

The defendant also gave Valentin a beeper number, which was later shown to be assigned to the defendant’s brother: Sometime during this transaction, the defendant mentioned that his brother drove a late model Jaguar, a fact substantiated by the testimony of another trooper. The defendant also told Valentin that he could supply more cocaine at $1000 an ounce.

Valentin met Trooper John O’Leary, who was acting as cover and surveillance officer for this operation, at a prearranged location approximately ten minutes after the transaction in the bar. O’Leary testified that Valentin gave him a $20 bill folded like an envelope containing white powder. O’Leary field-tested the white powder for the presence of cocaine. Both troopers initialed the $20 bill, and then the bill and its contents were placed in an evidence bag, which was then sealed.

O’Leary further testified that he originally had placed an orange evidence sticker labeled with an incorrect case number on the evidence bag, but that the correct case number was later written on the bag with a grease pencil. The evidence bag was introduced as an exhibit at trial bearing both the incorrect label and the number written in grease pencil.

One month after this incident, Valentin viewed a photographic array assembled by O’Leary. At a suppression hearing held before trial, Valentin testified that he “zoomed in” on photograph number two, thereby [546]*546identifying the defendant as the David who had sold him the cocaine. A warrant was issued for the defendant’s arrest on the strength of Valentin’s photographic identification and additional tests from the toxicology lab indicating that the substance wrapped in the $20 bill was cocaine.

The defendant first claims that the trial court should have suppressed Valentin’s identification of him because it was based on an unnecessarily suggestive and unreliable photographic array. Specifically, he points out that all of the other photographs were taken against the same kind of paneled background, whereas his was not, and that the size of the head in his photograph was larger than those in the other photographs. He claims that Valentin, as a trooper familiar with mug shots and photographic arrays, would have been influenced by the differences in the photographs, causing him to pick the defendant’s photograph out of the array. The defendant also claims that the identification was unreliable because the viewing took place a month after the alleged purchase, so that Valentin’s memory would have been clouded by intervening investigations. Finally, the defendant points out that Valentin testified that he had initialed the back of the photograph he had chosen but in fact there were no initials on the defendant’s photograph.1

Valentin testified at the suppression hearing that he had observed the defendant for ten or fifteen minutes before approaching him to make the buy. The transaction itself took another few minutes. The lighting throughout his encounter with the defendant was adequate for him to see the defendant. Valentin also testified that shortly after leaving the bar he described the defendant to O’Leary as an “Hispanic male with [547]*547squinted eyes, black hair and a little bit of a moustache.” He later identified the defendant from the photographic array without hesitation. The fact that this later identification of the defendant was made about a month after “the incident does not ‘under all the circumstances’ of this case create a ‘ “very substantial likelihood of misidentification.” ’ ” State v. Fullwood, 193 Conn. 238, 251 n.8, 476 A.2d 550 (1984), citing Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1972); see also Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).

“It is well settled that in order to succeed on a motion to suppress identification evidence, the defendant must prove (1) that the identification procedures were unnecessarily suggestive; and (2) that the resulting identification was not reliable in the totality of the circumstances.” State v. Myers, 193 Conn. 457, 464, 479 A.2d 199 (1984); State v. Anderson, 20 Conn. App. 271, 274, 560 A.2d 436 (1989), cert. denied, 213 Conn. 813, 569 A.2d 549 (1990). Here, the identification procedures were not unnecessarily suggestive; State v. Outlaw, 216 Conn. 492, 502, 582 A.2d 751 (1990); State v. Boscarino, 204 Conn. 714, 727, 529 A.2d 1260 (1987); State v. Vaughn, 199 Conn. 557, 564, 508 A.2d 430 (1986); and the resulting identification was reliable in the totality of the circumstances. See Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

The defendant next challenges the trial court’s admission of O’Leary’s testimony about Valentin’s identification of the defendant from the photographic array. The defendant argues that by eliciting hearsay testimony regarding the identification procedures, rather than putting the photographic array itself before the jury, the state protected the array from challenges to its reliability.

[548]*548We agree that O’Leary’s testimony was hearsay and that the defendant’s objection to its admission should have been sustained.

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Bluebook (online)
583 A.2d 925, 23 Conn. App. 543, 1990 Conn. App. LEXIS 400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-plaza-connappct-1990.