State v. Patterson

170 Conn.App. 768

156 A.3d 66

STATE of Connecticut

v.Clarence Malcolm PATTERSON

AC 37982

Appellate Court of Connecticut.

Argued November 28, 2016

Officially released February 21, 2017

Heather Clark, assigned counsel, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Jonathan Lewin, deputy assistant state's attorney, for the appellee (state).

Lavine, Alvord and Harper, Js.

Opinion

LAVINE J.

The defendant, Clarence Malcolm Patterson, appeals from the judgment of conviction, rendered after a jury trial, of one count of burglary in the second degree in violation of General Statutes § 53a–102 and one count of attempted larceny in the fifth degree in violation of General Statutes §§ 53a–49 and 53a–125a. On appeal, the defendant claims that (1) the trial court erroneously denied his motion to suppress two photographic lineup identifications and one private actor identification, (2) the state improperly cross-examined his expert witness when it questioned him about the opinions of other experts and about a hypothetical question that included facts not in evidence, and (3) the prosecutor engaged in multiple acts of prosecutorial impropriety. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately noon on May 2, 2013, Lester Segura was in his bedroom with his girlfriend, Angie Espitia, when he heard someone enter his residence. Segura hid behind his bedroom door and peered around it to see the defendant standing in his residence. From his room, Segura asked the defendant why he was there and asked him several times to leave. The defendant responded that he knocked on the front door and noticed that it was open, so he "just came in." During this exchange, Segura looked around the door three times. He observed the defendant for a total of fifteen to twenty seconds but saw the defendant's "full face" for approximately three to four seconds.

When the defendant exited the residence through the front door, Segura went outside and observed the defendant "walking fast" down the street toward a liquor and dress store. Gabriel Duarte, an employee of the store, was sweeping the sidewalk when he observed the defendant exit Segura's residence. Duarte was "face-to-face" with the defendant for approximately five seconds.

Segura went back inside his residence and noticed that his computer, iPad, and tools were on the couch where he had not left them. He then went into his brother's room and saw that somebody had moved his brother's coin jar. Espitia called 911, but before the police arrived, Segura realized that he recognized the defendant from "[i]n the store, [and] out on the street." He also thought that he had seen the defendant previously on the local news. He quickly checked News Channel 12 from his cell phone and found the defendant's photograph, which was displayed in relation to another burglary that took place approximately two weeks prior.

On May 8, 2013, Segura identified the defendant in a double-blind,¹ sequential² photographic lineup³ as the man he saw in his residence. One and one-half weeks before trial, Duarte identified the defendant in a different double-blind, sequential photographic lineup as the man he saw leaving Segura's residence. Duarte told police that he had seen the defendant prior to May 2, 2013, walking around the neighborhood. He also stated that the defendant previously had shopped at Duarte's store and that Duarte had once purchased a toy bubble gun from the defendant.⁴

The defendant was charged with burglary in the second degree and attempted larceny in the fifth degree. On July 14, 2014, the defendant filed a motion to suppress any identifications of him by Segura and Duarte. On August 18, 2014, the court conducted an evidentiary hearing, and on August 19, 2014, the court denied the defendant's motion.

During the defendant's case-in-chief, he called Samuel R. Sommers, an associate professor at Tufts University, to testify about the unreliability of eyewitness identifications. The state cross-examined Sommers about other experts' opinions pertaining to the reliability of these studies. The state also posed a hypothetical question to Sommers. Defense counsel did not object to either line of questioning.

During his closing and rebuttal arguments, the prosecutor stated that Sommers' testimony actually supported the state's theory that Segura and Duarte made accurate identifications of the defendant, reiterating the hypothetical he posed to Sommers. In addition, without tying his assertion to any evidence admitted at trial, the prosecutor opined that the defendant planned on selling Segura's property to a pawn shop.

On August 22, 2014, the jury found the defendant guilty on both counts. The court sentenced the defendant to ten years incarceration for the burglary in the second degree conviction and six months for the attempted larceny in the fifth degree conviction, for a total effective sentence of ten and one-half years. This appeal followed. Additional facts will be set forth as necessary.

IIDENTIFICATIONS

The defendant's first claim is that the court erroneously denied the defendant's motion to suppress the identifications of him by Segura and Duarte. Specifically, the defendant claims that the photographs viewed by Segura and Duarte were unduly suggestive and that the process⁵ by which police showed Duarte the photographs was unduly suggestive.⁶ The defendant also claims that Segura's private actor identification, when he identified the defendant from the news article, was the product of Segura's unduly suggestive conduct.⁷ The state claims that the police actions were not unduly suggestive because the police conducted double-blind, sequential lineups, and the photographs were not unduly suggestive because the defendant's photograph "was not highlighted in comparison to the other photographs." The state also claims that "Segura's use of his cell phone to access an online ... picture did not constitute an unnecessarily suggestive method of identification." We agree with the state and conclude that no part of the identification was the product of unnecessarily suggestive conduct and, therefore, do not reach the question of whether the identifications were otherwise unreliable.

The following additional facts, which are either in the record or which the court found in ruling on the motion to suppress, are relevant to this claim. During the 911 phone call made by Espitia, Segura described the defendant as a "bald [and] black" man. Shortly after, Daniel Musso, an officer of the Stamford Police Department (department), responded to the 911 call made by Espitia. When he arrived at Segura's residence, Segura described the defendant as a "black bald man" between the ages of forty and fifty years old. He also told Musso that he had seen the defendant prior to the incident and showed Musso the photograph of the defendant he found from the news. Musso did not ask Segura to locate the photograph and did not see the photograph until after he started his investigation.

Peter Dispagna, a sergeant with the department, created two different photographic lineups, both of which included a photograph of the defendant.⁸ In the photographic lineup shown to Segura, the defendant was the oldest person depicted in the photographs.⁹ The defendant's height fell within the range of the other individuals' heights, and the defendant and three other individuals were bald while the rest of the individuals had hair of varying lengths.¹⁰ The seven other individuals wore black and white shirts while the defendant wore an orange shirt. In the photographic lineup shown to Duarte, the defendant was not the oldest person depicted but was the only person who was bald.¹¹

On May 8, 2013, William Moore, an investigator with the department, conducted a double-blind, sequential photographic lineup with Segura. He read Segura the instructions on the witness instruction sheet before he conducted the photographic lineup, which included instructions that "[t]he perpetrator may or may not be among the persons in the photographic line up," and "[t]he persons in the photographic lineup ... may not look exactly as they did on the date of the offense because features like facial or head hair can change." Segura looked at all of the photographs as Moore turned them over one by one, and he immediately identified the defendant.

Approximately one and one-half weeks before the trial, Damien Rosa, an officer with the department, conducted a double-blind, sequential photographic lineup with Duarte. Rosa read the same instructions to Duarte as were read to Segura in English and in Spanish. After observing all of the photographs, Duarte immediately identified the defendant. Dispagna remained in the room while Rosa conducted the photographic lineup but did not assist Rosa in conducting the lineup or "say a word throughout the entire process."

Prior to trial, the defendant filed a motion to suppress any identifications of him by Segura and Duarte, including the photographic lineup identifications and Segura's private actor identification of the defendant from the news article. On August 18, 2014, the court held an evidentiary hearing on the motion to suppress, in which a number of witnesses, including Musso and Duarte, testified. On August 19, 2014, the court rendered an oral decision, denying the defendant's motion to suppress. It found that neither the photographs themselves nor the procedures used by police to obtain the identifications were "unnecessarily suggestive."¹² It also found Segura's "conduct [not] to be unnecessarily suggestive."¹³

APhotographic Lineup Identifications

The defendant claims on appeal that the court erroneously denied his motion to suppress the photographic lineup identifications by Segura and Duarte. With regard to Segura's photograph lineup identification, the defendant argues that...