State v. Watson

Page 497

718 A.2d 497

50 Conn.App. 591

STATE of Connecticut v. Robert WATSON.

No. 16892.

Appellate Court of Connecticut.

Argued June 8, 1998.

Decided Sept. 29, 1998.

Lisa J. Steele, Special Public Defender, for appellant (defendant).

John A. East III, Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Herbert E. Carlson, Jr., Supervisory Senior Assistant State's Attorney, for appellee (State).

Before SCHALLER, SPEAR and KULAWIZ, JJ.

SCHALLER, Judge.

The defendant, Robert Watson, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes §§ 53a-59 (a)(1) and 53a-8, ¹ assault in the second degree in violation of General Statutes §§ 53a-60b (a) ² and 53a-8, robbery in the first degree in violation of General Statutes §§ 53a-134 (a)(3) and 53a-8, conspiracy to commit robbery in the third degree in violation of General Statutes §§ 53a-136 and 53a-48 (a), burglary in the first degree in violation of General Statutes §§ 53a-101 (a)(2) and 53a-8 and conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-103 and 53a-48 (a). On appeal, the defendant claims that the trial court improperly denied his motions (1) to suppress photographs and eyewitness testimony identifying the defendant's automobile, (2) to suppress eyewitness identification of the defendant and (3) for judgment of acquittal based on his claim that the evidence was insufficient to support the jury's verdict of guilty as an accessory on the two counts of assault.

The jury reasonably could have found the following facts. On October 18, 1994, Hoyt Pease, eighty-five years old, drove from his home in Southington to the Fleet Bank branch office in Berlin. He withdrew $100 from the automatic teller machine (ATM). He was then approached by the defendant, who claimed to be lost and in need of directions to Waterbury. The defendant also claimed to be having car problems. Pease gave the defendant directions to Interstate 84, but the defendant stated that they were too confusing. Pease offered to show the defendant the way to the highway and added that it would take them past his home.

Pease drove away, followed by the defendant. The defendant was driving a red Yugo, with distinctive wheel covers and a broad white stripe underlined in black. Several minutes later, the defendant honked his horn and pulled off to the side of the road. Pease stopped his car and the defendant told him that his car was overheating. Pease offered to take the defendant to his home to get water to fill the radiator. The defendant then followed Pease to his home.

The defendant followed Pease up a long inclined driveway to the two car garage next to Pease's house. Pease filled the defendant's radiator and noted that although the water was low and the engine was hot, radiator fluid was not boiling over. Patricia Pease, his seventy-six year old wife, came outside and joined the two men. She greeted the defendant and observed that although the defendant was polite, he looked "awful," appeared "visibly very, very nervous," was "shaking" and his eyes "didn't look right."

After filling the defendant's radiator, Pease then led the defendant to a road that led to Interstate 84. The defendant told Pease that his car needed gasoline. When Pease observed that the gasoline gauge indicated that the defendant's tank was not low, the defendant claimed that the gauge was broken. Pease then led the defendant to a nearby gas station, Patriot Petroleum.

John Aliberti, the gas station's owner, was repairing a car approximately twenty-five feet from the gasoline pumps and noticed the Yugo's distinctive wheel covers, one of which was damaged or broken. He also noticed that the defendant had parked too far from the pumps. Randy Spaulding, an attendant, walked over to the defendant to assist him, but the defendant searched his pockets and instructed Spaulding not to pump any gasoline because he did not have any money. Spaulding noticed a large number of cassette tapes on the dashboard of the defendant's car.

Pease waved goodbye to the defendant and drove away. The defendant told Spaulding "to hell with the gas" and drove away in the same direction as Pease. Pease followed the same route home and parked his car in the garage. Approximately ten minutes later, Patricia Pease returned home and parked her car in the garage, but did not close the garage door. During this time, Patricia Verderame, the Peases' neighbor, and Paul Stocking, Verderame's business partner, were in Verderame's front yard loading firewood into Stocking's truck. They both observed the Peases arrive home.

Shortly after Patricia Pease arrived home, Verderame and Stocking observed two cars drive up the Peases' driveway at excessive speeds. The first car was a small red import with white stripes along the sides. The driver was a young, dark skinned male approximately twenty-five to thirty years old. The second car was an older, tan colored compact driven by a dark skinned male neatly dressed in tan or khaki colored clothing.

Verderame and Stocking considered the arrival of the two men to be odd, but surmised that they were hired to do yard work and returned to loading firewood into Stocking's truck. Several minutes later, at approximately 4:30 p.m., Verderame and Stocking left.

At approximately the same time, Patricia Pease heard someone in the garage. She called to her husband, and the two went to the garage. As Hoyt Pease entered the garage, he was struck by a man standing to his right near a pile of firewood logs. Patricia Pease turned and charged his attacker, but was struck by a second blow and knocked to the floor. She turned toward her husband and saw him being struck with a log of firewood by a neatly dressed, dark skinned male in brown clothing. She charged her husband's attacker, but was struck in the head with the log. The attacker then took Hoyt Pease's wallet and fled. The couple assisted each other, returning to the house to call 911.

Before Hoyt Pease was transported by ambulance to a hospital, he related his interaction with the defendant that day and described the defendant's car to Officer Louis Palmieri. On the basis of that information, police officers obtained the ATM surveillance videotape and obtained two still photographs from the videotape that depicted Hoyt Pease, the defendant and the defendant's vehicle. The following day, police officers interviewed Spaulding, Verderame and Stocking as to their observations the previous day. On the basis of those interviews, the Southington police issued an alert for a red Yugo with a white stripe on each side.

On October 20, 1994, Officer Robert Pekrul of the Meriden police department spotted a car matching the description issued by the Southington police department. After running a computer check of the license number, Pekrul learned that the car was registered to an address at 49 Goodwill Street in Meriden and relayed that information to the Southington police. Several hours later, Detective Michael Shanley of the Southington police department and his partner arrived at 49 Goodwill Street. They observed a red Yugo with a white stripe parked at the end of the driveway. Upon further examination, Shanley noted that the car matched the descriptions given in every respect, including the large number of cassette tapes on the dashboard, as observed by Spaulding. Shanley and his partner stayed at this location and photographed the car.

Detective Craig Fournier went to Patriot Petroleum, in an effort to locate Spaulding so that he could view the car. Spaulding was not at work, but Fournier learned that Aliberti had also observed the defendant and his car. Fournier then drove Aliberti to 49 Goodwill Street.

While Shanley was taking photographs, the defendant came out of the house to speak to the detective. Two detectives from the Southington police department arrived with the ATM surveillance photographs. Several Meriden police officers also arrived to assist in the investigation. The defendant agreed to be photographed and consented to a search of his house.

Fournier and Aliberti arrived at the house and, in part on the basis of the broken distinctive wheel cover, Aliberti positively identified the vehicle as the car that he had seen on October 18, 1994. He further identified the defendant as the driver of the car. Shanley returned to Patriot Petroleum and showed photographs of the defendant's car to Spaulding. Spaulding identified the car as the same make, model and color as the car he had seen on October 18, 1994. Shanley also showed Spaulding an array of six photographs of possible suspects. Spaulding selected the defendant's photograph as being that of the driver of the car.

That same day, Shanley showed photographs of the car to Verderame and Stocking. Both told Shanley that the car in the photographs was very similar to the car they had seen driving up the victim's driveway.

On October 21, 1994, Fournier brought Hoyt Pease to the Southington police garage to view the defendant's Yugo. Pease told Fournier that the car looked "exactly" like the one he had filled with water prior to the attack. Pease also selected the defendant's photograph from the six photograph array. Patricia Pease, while in the hospital, was subsequently shown the array of photographs. She did not select the photograph of the defendant.

I

The defendant first claims that the trial court improperly denied his motion to suppress the eyewitnesses' identifications of his car and the photographs of his car. The defendant claims that the various identifications were unreliable and resulted from an unnecessarily suggestive identification procedure. In support of this claim, the defendant relies on Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (197...