State v. Payne

917 A.2d 43

100 Conn.App. 13

STATE of Connecticut v. Tyrone E. PAYNE.

No. 26782.

Appellate Court of Connecticut.

Argued January 3, 2007.

Decided March 13, 2007.

Sarah F. Summons, special public defender, for the appellant (defendant).

Joan K. Willin, special deputy assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Christian M. Watson, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and SCHALLER and HENNESSY, Js.

FLYNN, C.J.

The defendant, Tyrone E. Payne, appeals from the judgment of conviction, rendered after a jury trial, of identity theft in violation of General Statutes § 53a-129a, forgery in the second degree in violation of General Statutes § 53a-139(a)(1), criminal attempt to commit larceny in the second degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-123(a)(1), and criminal impersonation in violation of General Statutes § 53a-130(a)(1).¹ On appeal, the defendant claims that the court improperly (1) denied his motion for dismissal and request for an evidentiary hearing, which was based on his allegation of selective prosecution, and (2) allowed the state to introduce evidence of his prior bad acts. We affirm the judgment of the trial court.

The following facts, as reasonably could have been found by the jury, and procedural history are relevant to our resolution of the defendant's appeal. The defendant, posing as his first cousin, Paul Payne, went to TK Auto Wholesalers, Ltd. (TK Auto), and attempted to finance the purchase of a 1995 Lincoln Mark VIII motor vehicle for a total purchase price of $9309.² Robert Neidermyer, a salesperson at TK Auto, assisted the defendant in completing the forms necessary to purchase and finance the vehicle. The defendant gave Neidermyer all of the requested information, including the name, address, place of employment, income, social security number, date of birth and driver's license number for Paul Payne. The defendant also presented Paul Payne's driver's license to Neidermyer, who made a photographic copy of it. During the transaction, Neidermyer left to assist his wife, and Michael Robson, TK Auto's general manager, finished completing the documentation with the defendant. The defendant stated that he was Paul Payne, and he signed the credit application using the name Paul Payne, although his true name was Tyrone Payne. The defendant also told Robson that he had not financed a vehicle previously.

Robson told the defendant that he would telephone him at the number he provided if his loan was approved. After running Paul Payne's credit report, however, Robson became concerned because the defendant had represented that he had not taken out a car loan previously, but Paul Payne's credit report showed that there previously had been a car loan, which had been paid in full and was "perfect." Robson then compared the signature on the driver's license with the signature on the paperwork and concluded that they did not match.

When Neidermyer returned to TK Auto after assisting his wife, Robson asked him if he had noticed anything strange about his transaction with the defendant, to which Neidermyer responded negatively. Robson then explained to Neidermyer that he did not think that the defendant's signature on the credit application matched the signature on the photographic copy of the license that the defendant had presented to the dealership. Neidermyer compared the documents but could not tell if they were the same.

Robson dialed the number that the defendant had provided on the vehicle purchase order and was told by the person answering the telephone that they never had heard of Paul Payne. Robson also telephoned directory assistance and, using the address that the defendant had provided on his application, obtained the telephone number for Paul Payne. Robson dialed the number he had obtained from directory assistance and left a message on an answering machine, stating that he had a few more questions regarding the vehicle purchase. A very short time later, a man returned Robson's telephone call, identifying himself as the real Paul Payne. He explained that he was in Georgia, and he asked Robson to notify the police because he believed that his cousin was attempting to defraud him. Robson then telephoned the police.

Neidermyer was directed by the police to have the defendant return to TK Auto under the guise of filling out more paperwork in order to pick up the vehicle, and Neidermyer was instructed to telephone the police when the defendant was on his way to TK Auto. When the defendant telephoned the dealership to find out the status of his purchase, Neidermyer, as directed by the police, told the defendant that the vehicle was ready for pickup and that he needed to come in and fill out the remaining paperwork. After the defendant arrived at TK Auto, Neidermyer went through some paperwork with him and, following the instructions given by the police, then told the defendant that he needed to make copies of these papers. When Neidermyer left the room, the police approached the defendant and asked him to identify himself. The defendant stated that he was Paul Payne. The police then arrested him. At the time of his arrest, the defendant had in his possession Paul Payne's driver's license and birth certificate. He also had a department of correction inmate identification card bearing the name Paul Payne but containing a photograph of the defendant.³

The defendant was charged with and convicted of identity theft, forgery in the second degree, criminal attempt to commit larceny in the second degree and criminal impersonation. He was sentenced to a total effective sentence of six years incarceration, execution suspended after five years, with one year of intensive probation.⁴ This appeal followed. Additional facts will be set forth where necessary.

I

On appeal, the defendant first claims that the court improperly denied his motion to dismiss and request for an evidentiary hearing, which was based on his allegation of selective prosecution. In support of this claim, the defendant argues that the court improperly denied his motion because he had set forth a prima facie case showing that (1) the salesmen at TK Auto were similarly situated, relative to him, but were not prosecuted, and (2) he was the victim of invidious discrimination on the basis of his "suspect classification" as a "converter of property." We are not persuaded.

"We must first consider the standard of review where a claim is made that the court failed to grant a motion to dismiss. Our standard of review of a trial court's . . . conclusions of law in connection with a motion to dismiss is well settled. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts . . . . Thus, our review of the trial court's ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo." (Internal quotation marks omitted.) State v. Perez, 82 Conn. App. 100, 106, 842 A.2d 1187, cert. denied, 269 Conn. 904, 852 A.2d 734 (2004).

In cases in which the defense of selective prosecution has been asserted, before a motion to dismiss can be granted, the defendant must prove "(1) that others similarly situated have generally not been prosecuted and that he has been singled out and (2) that he is the victim of invidious discrimination based on impermissible considerations such as race, religion, or the exercise of a constitutionally protected right." (Internal quotation marks omitted.) State v. Delossantos, 211 Conn. 258, 287-88, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S.Ct. 188, 107 L.Ed.2d 142 (1989); see also United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974).

In relation to the court's denial of the defendant's request for an evidentiary hearing, however, we recently had the opportunity to determine under what circumstances a defendant claiming selective prosecution is entitled to an evidentiary hearing. In State v. Perez, supra, 82 Conn.App. at 100, 842 A.2d 1187, we stated that "[w]e believe that [n]o evidentiary hearing . . . is required unless the [trial] court, in the exercise of its discretion, finds that the required prima facie showing has been made as to both elements of the [selective prosecution] test. . . . [Furthermore,] we [held] that an evidentiary hearing to prove selective prosecution is not a matter of right and is not available to every defendant, but rather is to be granted at the discretion of the trial court following a prima facie showing by the defendant that a legitimate claim exists with regard to both prongs of the selective prosecution test." (Citation omitted; internal quotation marks omitted.) Id., at 110, 842 A.2d 1187.

As the United States Court of Appeals for the Second Circuit has explained: "To warrant discovery [or an evidentiary hearing] with respect to a claim of selective prosecution, a defendant must present at least some evidence tending to show the existence of the essential elements of the defense . . . . Mere assertions and generalized proffers on information and belief are insufficient." (Citations omitted; internal quotation marks omitted.) United States v. Fares, 978 F.2d 52, 59 (2d Cir.1992). "[T]o engage in a collateral inquiry respecting prosecutorial motive, there must be more than mere suspicion or surmise. If a judicial inquiry into the government's motive for prosecuting could be launched without an adequate factual showing of impropriety, it would lead far too frequently to judicial intrusion on the power of the executive branch to make prosecutorial decisions. Unwarranted judicial inquiries would also undermine the strong public policy that resolution of criminal cases not be unduly delayed by litigation over collateral matters." United States v. Ross, 719 F.2d 615, 619 (2d Cir. 1983). When a request for an evidentiary hearing and...