State v. Grant

154 Conn.App. 293

112 A.3d 175

STATE of Connecticut

v.Cecil GRANT.

No. 35053.

Appellate Court of Connecticut.

Argued Sept. 8, 2014.

Decided Dec. 23, 2014.

James B. Streeto, assistant public defender, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and David L. Zagaja, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and PRESCOTT and BEAR, Js.

Opinion

PRESCOTT, J.

The defendant, Cecil Grant, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–134 (a)(2) and 53a–48, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a–134 (a)(2) and 53a–49 (a)(2), and assault in the first degree in violation of General Statutes §§ 53a–59 (a)(5) and 53a–8. The defendant claims on appeal that (1) the trial court improperly denied his motion to suppress the victim's pretrial and trial identifications, (2) the court improperly permitted the state to present evidence of uncharged misconduct, and (3) he was denied his right to a fair trial due to prosecutorial impropriety. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 10 p.m. on April 30, 2011, the defendant and two other individuals, Derek Newkirk and Mike Anderson, were visiting with Gustin Douglas at Douglas' apartment at 502 Mary Shepard Place in Hartford. The defendant and Newkirk told Douglas that they needed money, and the group discussed restaurants in the area that might have delivery persons who retained payments between deliveries. The defendant used Douglas' cell phone to order a pizza from Pizza 101 on Albany Avenue in Hartford. While waiting for the delivery person to arrive, the defendant displayed a revolver, waving it around and passing it between himself and Newkirk before putting it into the pocket of his hooded sweatshirt. Newkirk and the defendant went outside to meet the delivery driver; Douglas and Anderson remained inside.

At approximately 11 p.m., the victim, a delivery person for Pizza 101, was dispatched to make a delivery to 502 Mary Shepard Place. She initially had trouble finding the address. She called the telephone number indicated on the order slip, and a man answered and provided her with directions. When she arrived at the address, the defendant approached the front passenger door of the victim's vehicle. Newkirk stood near the defendant. Both men's faces were uncovered and clearly visible to the victim. The defendant spoke with the victim through the open passenger side window, asking her several times if she had change; the victim responded each time that she did not. The defendant then displayed a revolver, which he placed against the passenger door, stating, “[W]ell, gimme this.” Simultaneously, the defendant attempted to open the front passenger door but was unable to do so.

After seeing the defendant holding the revolver, the victim started to drive away, at which time the defendant began shooting. Five bullets entered the car, striking the victim in the neck, chin, shoulder and arm. Because Mary Shepard Place is a dead-end street, the victim had to turn her vehicle around and pass by the defendant and Newkirk in order to get away. The victim drove herself to a hospital. The defendant and Newkirk returned to Douglas' apartment. Douglas, who had heard the gunshots, observed that the defendant and Newkirk were acting “[l]ike they were nervous” when they returned, but he did not discuss with them what had happened outside.

The police were dispatched to the hospital, where they photographed and secured the victim's vehicle. A detective later interviewed the victim about the shooting. The victim described her shooter as a black male of light to medium complexion, short hair, skinny build, five feet, six inches tall, between sixteen and seventeen years old, wearing jeans and a black hooded sweatshirt over a shirt with a design on it. The police investigated the cell phone number that the victim had called to obtain directions prior to the shooting, which eventually led them to speak with Douglas. Douglas provided the police with details about his interactions with the defendant and Newkirk on the night of the shooting, which led the police to consider them as suspects. Douglas also identified photographs of the defendant and Newkirk in police photographic arrays. The police later asked the victim to look at photographic arrays, from which the victim was able to identify both the defendant and Newkirk.

The defendant was arrested and charged with conspiracy to commit robbery in the first degree, attempt to commit robbery in the first degree, and assault in the first degree. The jury found the defendant guilty of all the charges. The court thereafter sentenced the defendant to a total effective term of sixty years of incarceration, suspended after forty years, followed by five years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims on appeal that the court improperly denied his motion to suppress the victim's pretrial and trial identification on the ground that the photographic array and procedures used by the police to identify him were unduly suggestive.¹ In particular, the defendant argues that important protocols concerning the administration of photographic arrays were not followed and that aspects of the photographs used in the array rendered the array itself unnecessarily suggestive. In response, the state contends that the defendant failed to raise to the trial court seven of the eight purported problems with the array and its administration now identified by the defendant in his appellate brief and, thus, they are not properly preserved for appellate review. With respect to the single issue that the state concedes was preserved, which involves the suggestiveness of the array itself, the state contends that the court properly ruled that the array was not unnecessarily suggestive. Ultimately, we conclude that the defendant has failed to demonstrate that the identification procedures and the array utilized by the police in the present case were unnecessarily suggestive and, thus, has failed show that the court improperly denied his motion to suppress.

The following additional facts, which are undisputed in the record or which the court found in ruling on the motion to suppress, are relevant to our resolution of the defendant's claim. The police developed the defendant and Newkirk as possible suspects on the basis of their interview of Douglas and his identification of the defendant and Newkirk in photographic arrays.² The police next prepared two photographic arrays to present to the victim, one containing a photograph of the defendant and the other a photograph of Newkirk. Each array consisted of a single sheet of paper containing eight headshot photographs of different men numbered one through eight. In the array containing the defendant's photograph, the defendant was the only person that appeared to be wearing a hooded sweatshirt. Otherwise, the individuals in the defendant's array all had similar appearances and physical characteristic.

On July 12, 2011, approximately ten weeks after the shooting, the victim was asked by Detective Anthony Pia of the Hartford Police Department, who had taken over the investigation into the shooting, to meet and to look at photographic arrays. Prior to showing the arrays to the victim, the detective gave her an instruction sheet that provided, among other things, that the photograph of a suspect may or may not be included in the array and that the police would continue to investigate the incident regardless of whether the victim identified someone in the array. The victim signed the instruction sheet, acknowledging that she understood those directions.³ After the victim was shown the array containing the defendant's photograph, the victim identified the defendant as her shooter.

Prior to trial, the defendant filed a motion to suppress any pretrial or in-court identification of the defendant by the victim. The defendant asserted in his motion that the pretrial identification procedures used by the police were unnecessarily suggestive and unreliable under the circumstances, that any later in-court identification by the victim necessarily would be tainted irretrievably by the prior illegal identification, and that any identification would fail to meet the standards of neutrality and reliability as enunciated in our case law. The court held an evidentiary hearing on the motion to suppress, at which the victim and Pia testified.

Following the evidentiary hearing, the court heard arguments from the parties. The defendant argued that the array containing his photograph was unnecessarily suggestive because he was the only person in the array that was wearing a hooded sweatshirt, and the victim previously had provided the police with a description indicating that her assailant had been wearing a black hooded sweatshirt. The defendant made no other arguments regarding the suggestiveness of the array itself or the procedures utilized by the police in obtaining the identification. The defendant did raise several additional points relative to the overall reliability of the victim's identification, including that the victim's encounter with her assailant had occurred at night; that her opportunity to observe him lasted only a few minutes, a part of which time she also was observing Newkirk; that she was in fear for her life at the time of the incident; and that she already had started to drive away when the gunshots were fired and, thus, did not have an opportunity to see who fired the gun. The state argued that the fact that the defendant was the only one in the array wearing a hooded sweatshirt was not,...