18 Conn. App. 694 | Conn. App. Ct. | 1989
The defendant appeals from the judgment
of conviction,
The jury could reasonably have found the following facts. On the afternoon of March 2, 1987, at approximately 4:15 p.m., the complainant was operating her car in Brookfield. The car had a temporary license plate, which had expired two months earlier, affixed to the rear window. While proceeding on Federal Road, she looked in her rear view mirror and observed a car with a flashing red light behind her. Believing it to be an unmarked police car, she drove to the side of the road and remained in her car. Looking through the rear and side view mirrors, she observed a dark blue car with an antenna on the right side, a red flashing light on the left side of the roof, and a “star-like” emblem or ornament on the front of the hood above the grill. She also observed the male operator of the car exit the vehicle and walk up to the driver’s side window of her vehicle. The complainant had a clear view of him as he approached her vehicle. According to the complainant’s description, the man was tall, walked with a limp, was of average build, and had a mustache, dirty blond hair and a red mark over his right eye. He wore dark blue pants, black shoes, a belt with a silver buckle, and had a shiny silver badge affixed to his left shirt pocket. When the defendant reached the car, he introduced himself as Officer Taylor and informed the complainant that she was driving a car with an unregistered license plate, but that he would “forget about the whole thing” if she went to bed with him. He then reached into the complainant’s car and grabbed her breasts tightly with both hands so that she was pinned to the seat. The victim put her car into gear and sped off, leaving the man standing there mouthing words that she could not hear. The entire incident lasted approximately thirty seconds.
That evening, at approximately 7:30 p.m., the victim reported the incident to the Brookfield police. She gave the police an oral description of her assailant which was transcribed into a two page statement. The police also prepared a sketch of the badge worn by her assailant. The following day the victim returned to the Brookfield police department, and a composite sketch of her attacker was drawn from her description.
The victim made three out-of-court identifications and one in-court identification of the defendant. Other facts relevant to the issues in this appeal will be discussed below.
I
The defendant’s first claim is that the trial court erred in denying his motion for judgment of acquittal. The defendant argues that the state failed to establish beyond a reasonable doubt the elements of sexual assault in the third degree as required by General Statutes § 53a-72a (a) (1) (A). In particular, the defendant relies on State v. Hufford, 205 Conn. 386, 533 A.2d 866 (1987), and claims that the state failed to prove that he used “force” to compel the sexual contact. The state maintains that this case is distinguishable from Hufford. We agree with the state.
Although State v. Hufford, supra, presents a similar factual scenario, the pertinent facts of this case are distinct. In Hufford, the victim was sexually assaulted by an ambulance technician while en route to the hospital. After the defendant and another technician had restrained her on a stretcher so that she was unable to move her limbs, she was placed in the rear of the
In reaching this result, the court in Hufford compared sexual assault in the third degree; General Statutes § 53a-72a (a) (1) (A); with sexual assault in the fourth degree; General Statutes § 53a-73a (a) (1) (E); and examined the legislative background of these statutes. The court explained that “[w]hile both statutes proscribe nonconsensual sexual contact, sexual assault in the third degree by use of force contemplates a will overborne by physical coercion, whereas sexual assault in the fourth degree addresses subjection to sexual contact upon a physically helpless person without the victim’s consent under circumstances not necessarily requiring physical force.” Id., 393.
In order to effectuate the sexual assault in Hufford, “[n]either violence, nor physical coercion, nor use of superior strength was necessary” because “[t]he complainant had been legally rendered immobile for transport to the hospital . . . .” (Emphasis added.) State
We hold, therefore, that on the facts of this case the jury could reasonably have concluded that the defendant used force to compel the complainant to submit to sexual contact, as contemplated by General Statutes § 53a-72a (a) (1) (A). Accordingly, there was no error in the trial court’s denial of the defendant’s motion for judgment of acquittal on that charge.
II
The defendant’s next claim is that his federal and state constitutional rights
The following facts are relevant to the defendant’s claim. Two days after the assault, Lieutenant Arthur Sullo of the Danbury police department examined the composite picture that was drawn from the victim’s description of her assailant, and notified the Brookfield police that he suspected the defendant was the perpetrator. Sullo was acquainted with the defendant because the defendant is a local practicing psychotherapist and had volunteered his services for the Danbury police department’s Hostage Negotiation Unit and also had been hired as a consultant.
On March 10, 1987, two detectives from the Brook-field police department contacted the complainant and requested to meet with her. At about 11 a.m., the detectives picked up the victim at her home and proceeded to the Brookfield police department. En route to the police station, after being asked to observe cars for the purpose of identifying those that resembled the one driven by her assailant, the victim pointed to the defendant’s car which was parked in the driveway of his residence. The detectives then drove the victim to a restaurant in Danbury where she was asked to observe the people entering and exiting the building.
After a short time, the defendant arrived at the restaurant as a passenger in a grey, four door Dodge Diplomat that parked in front of the vehicle in which the complainant was seated. The car was driven by Sullo, who had arranged to have lunch with the defendant that day for the specific purpose of the viewing. As the defendant exited the vehicle and walked toward the restaurant, the complainant positively identified him as her attacker.
After Sullo and the defendant entered the restaurant, the officers and the complainant went to the police station. At approximately 1:15 p.m., they returned to the restaurant and parked in front of the vehicle that the defendant had exited. Upon seeing the defendant leave the restaurant and walk to the car, the victim made a second positive identification of him. Later that day, at the police station, the victim gave a handwritten statement in which she indicated, inter alia, that the defendant’s hair appeared darker in color and his mustache was now a little longer.
“The due process clause of the fourteenth amendment to the United States constitution requires the exclusion of identification evidence when the procedure used was so impermissibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983). Tn
Turning to the first prong of the analysis, the defendant argues that the identification procedures employed were constitutionally infirm for the following reasons: (1) the victim had reason to anticipate that she would be seeing someone the police suspected was the perpetrator; (2) the defendant arrived in an unmarked police car of a similar make and model to the one driven by the victim’s assailant; and (3) it was unnecessary for the police to undertake a public viewing.
It is not clear from the record whether the victim knew a suspect was expected at the restaurant. Assuming that she was aware that the police were bringing a suspect to the restaurant, we are unpersuaded that this information tainted the identification. Although it is true that when a witness “is asked to identify a person under circumstances in which it is evident that the police believe the person to be a suspect, there is a significant risk that the ensuing identification will have
The defendant next argues that the use for the viewing of an unmarked police car of the same make and model as the one driven by the victim’s assailant at the time of the crime was an “unsubtle tip-off” to the victim that the defendant was the suspect and, thus, rendered the identification impermissibly suggestive. The record discloses that the automobiles were not the same make and model. Sullo’s was described as a dark grey, four door Dodge while the defendant’s car, iden
The defendant’s final challenge to the suggestiveness of the identification is that it was entirely unnecessary for the police to conduct a public viewing because a lineup or photographic array could have been arranged. We emphasize that there is no constitutional right to a line-up; State v. Vaughn, 199 Conn. 557, 562, 508 A.2d 430, cert. denied, 479 U.S. 989, 107 S. Ct. 583, 93 L. Ed. 2d. 585 (1986); and there is nothing inherently suggestive about a public viewing. See State v. Ruiz, 202 Conn. 316, 320, 521 A.2d 1025 (1987); State v. Amarillo, 198 Conn. 285, 291-92, 503 A.2d 146 (1986); State v. Arroyo, supra; State v. Hyslop, 10 Conn.
Even if we were to assume, arguendo, that the procedures employed were suggestive, the defendant has failed to demonstrate that the identification was unreliable. “ ‘[I]n assessing the admissibility of in-court identification testimony, reliability is the “linchpin.” Manson v. Brathwaite, [432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)]; State v. Piskorski, 177 Conn. 677, 742, 419 A.2d 886 [cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194] (1979). Reliability is to be determined by the totality of the circumstances . . . .’ ” (Citation omitted.) State v. Perez, supra, 75. In determining the reliability of the identification, a number of factors are relevant including “ ‘the opportunity of the witness to view the [defendant] at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the [defendant], the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ ” State v.
Applying these factors to the facts of this case, we conclude that the initial identification was reliable. The victim testified that she had had a good view of the defendant at the time of the assault in daylight hours for approximately ten to fifteen seconds. Immediately after the assault, she had been able to describe the defendant to the police. The identification at the restaurant took place only eight days after the assault and the victim evinced a high degree of certainty that the defendant was the person who had assaulted her. We conclude that under the totality of the circumstances of this case, the defendant did not meet his burden of proving that the victim’s first identification of the defendant was unreliable.
Having determined that the victim’s initial identification of the defendant was not impermissibly suggestive or unreliable, it cannot be said that the second identification, made approximately one hour later, was tainted. State v. Amarillo, supra, 294; State v. Perez, supra, 74; State v. Barnes, supra, 345. Similarly, absent a tainted pretrial identification, it is unnecessary to review the suggestibility of the in-court identification. See State v. Smith, 200 Conn. 465, 469, 512 A.2d 189 (1986); State v. Amarillo, supra.
We conclude that the trial court did not err in denying the defendant’s motion to suppress the pretrial identifications as the procedure employed was not impermissibly suggestive nor was the identification unreliable.
Ill
The defendant’s third claim is that the trial court erred in denying his motion to suppress evidence seized
The defendant’s first challenge is that the search warrant was illegally defective on its face because the affidavit failed to establish probable cause as to certain items and was not sufficiently particularized. The warrant specifically authorized a search for and the seizure of certain items including: “A 1983 Plymouth reliant two door sedan . . . red emergency vehicle lights; badges; uniforms; uniform ornaments; dark blue trousers; shirts and ties; uniform patches.” The defendant concedes that the affidavit establishes sufficient probable cause with respect to all items listed except the uniform ornaments and the uniform patches. He argues that with respect to these two items, the warrant did not establish probable cause because the affidavit did not aver that the defendant wore these items at the time of the crime.
It is well established that “[i]n reviewing a search warrant affidavit the court ‘must ascertain whether the facts in the affidavit are sufficient to justify an independent determination by a neutral and detached issuing judge that the necessary probable cause exists for the issuance of the warrant. State v. Williams, 169 Conn. 322, 326, 363 A.2d 72 (1975); State v. Rose, 168 Conn. 623, 627-28, 362 A.2d 813 (1975); State v. Allen, 155 Conn. 385, 391, 232 A.2d 315 (1967).’ State v. DeChamplain, 179 Conn. 522, 527-28, 427 A.2d 1338 (1980); see State v. Arpin, 188 Conn. 183, 193, 448 A.2d 1334 (1982). ‘Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or con
“Whether there is probable cause is to be determined upon facts stated in the affidavit purporting to establish grounds for issuing the warrant. United States v. Harris, 403 U.S. 573, 579, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971); State v. DeChamplain, [supra, 530]. In considering the sufficiency of the affidavit we confine ourselves to the facts which appear on the face of the affidavit or which properly may be inferred therefrom; State v. Williams, 170 Conn. 618, 629, 368 A.2d 140, cert. denied, 429 U.S. 865, 97 S. Ct. 174, 50 L. Ed. 2d 145 (1976); testing those facts with common sense and reality; United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); and with great deference to the fact that the issuing magistrate did determine that probable cause existed. Jones v. United States, 362 U.S. 257, 270-71, 80 S. Ct. 725, 4 L. Ed. 2d 697 (I960).” State v. Couture, 194 Conn. 530, 536, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).
“When a warrant is sought to search specific premises for certain objects the information appearing in the affidavit should demonstrate a nexus between the objects to be seized and the premises to be searched. United States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979). That nexus ‘[does] not have to rest on direct observation, but can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences . . . . ’ Id.” State v. Couture, supra, 536-37. Probable cause must be examined in terms of whether the evidence
Although the affidavit did not state that the victim indicated that the assailant had ornaments or patches on his clothing, it did include the following information: (1) the victim was stopped by what she thought was an unmarked police car with a flashing light on the roof; (2) the victim’s assailant was wearing a uniform, a badge and buckle, and identified himself as “Officer Taylor”; (3) the perpetrator fit the defendant’s general description; (4) the description of the defendant’s car matched that of the assailant; and (5) the defendant had purchased numerous, sundry uniform patches and ornaments bearing the inscription “C.E.S.A.” (Connecticut Emergency Service Association).
The defendant was charged with the crime of criminal impersonation because he feigned being a police officer for the purpose of stopping the victim and effectuating the assault. Employing common sense in reviewing the facts contained in the affidavit, we conclude that there is more than sufficient information contained therein to allow a reasonable inference that the patches and ornaments were connected with the crime alleged.
The defendant claims that the warrant was invalid because it lacked particularization to authorize a search and seizure of any “badges” because the affidavit failed to contain a pictorial or written description of the specific silver badge described by the victim. The defendant maintains that this deficiency causes the warrant to be defective on its face and constitutes a “general” warrant. We disagree.
The fourth amendment to the United States constitution provides that a warrant must “particularly
The defendant next maintains that the executing officers exceeded the scope of the warrant by seizing a number of items not named in the warrant. He argues that handcuffs and a police baton are examples of items seized that went beyond the warrant and were clearly prejudicial. Other items seized were police hats, an EMT jacket, and badge cases. All of these items were admitted into evidence at trial. The state contends that the seizure of these items was lawful under the plain view doctrine. See State v. Hobson, 8 Conn. App. 13, 18, 511 A.2d 348, cert. denied, 201 Conn. 808, 515 A.2d 379 (1986), cert. denied, 480 U.S. 917, 107 S. Ct. 1370, 94 L. Ed. 2d 684 (1987), citing State v. Pepe, 176 Conn. 75, 405 A.2d 51 (1978).
The plain view doctrine may be invoked to validate the seizure of evidence not mentioned in a warrant where three requirements are satisfied: (1) the initial intrusion that enabled the police to view the items was
The defendant does not challenge the legality of the police intrusion or the inadvertence of the discovery of the items. He alleges that the items were improperly seized because they were not named in the warrant and constituted neither contraband nor evidence of criminal activity. We find this claim to be without merit. The required inquiry is whether the incriminatory nature of the items was immediately apparent so as to establish that the officers had reason to believe that the items were related to the crime that formed the basis of the warrant. State v. Graham, 186 Conn. 437, 443-44, 441 A.2d 857 (1982); State v. Onofrio, 179 Conn. 23, 41, 425 A.2d 560 (1979).
There is no evidence that the police, in searching for and seizing items called for in the warrant, ignored the limits of the warrant and conducted a search so general or exploratory in nature as to violate the prohibition on unreasonable searches and seizures in both our state and federal constitutions. We conclude that the trial court could reasonably have found that the challenged items were reasonably related to the crime of criminal impersonation and supported the defendant’s modus operandi in committing the sexual assault. The court, therefore, did not err in refusing to suppress these items.
The defendant’s final challenge to the search is that the police officers exceeded the bounds of their jurisdiction. The defendant did not raise this claim at trial and seeks review pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and alternatively, under the plain error doctrine. Practice Book § 4185.
The defendant contends, alternatively, that we review this unpreserved claim under the plain error doctrine pursuant to Practice Book § 4185. The defendant does not assert the manner in which such an alleged error rises to the level of plain error. Furthermore, the error claimed by the defendant is not so obvious or so egregious as to constitute plain error.
IV
The defendant next claims that the trial court erred in permitting the state to introduce into evidence a police baton and handcuffs with matching key. The defendant argues that these items were irrelevant, highly prejudicial, and tended to show criminal propensity. We find these claims to be without merit.
Our Supreme Court has repeatedly held that it is reversible error for the trial court to allow into evidence articles seized from the defendant that tend to show criminal propensity unless those articles are connected
The complainant testified that she pulled her car over to the side of the road because she thought the defendant was a police officer. In addition to the sexual assault charge, the defendant was charged with impersonating a police officer. In light of the charges and the facts of this case, the evidence of handcuffs and a police baton found in the defendant’s home was admissible to prove the crime of criminal impersonation and corroborative of the plaintiff’s testimony. Although this evidence may have been cumulative of other evidence introduced to establish the crime of criminal impersonation, it was not of the type likely to excite the passions, awaken the sympathy, or influence the judgment of the jury. State v. Wilson, supra, 450; State v. Onofrio, supra, 30.
V
The defendant next claims that the trial court erred in admitting Sullo’s testimony regarding his opinion that the composite sketch of the victim’s assailant resembled the defendant. On direct examination, Sullo testified that on March 4, 1987, he received a copy of the composite sketch and a cover letter describing the crime from the Brookfield police department. In
Lay opinion may properly be admitted on the issue of the identity or similarity of persons. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 7.15.3 (b). Such testimony must, however, be based entirely on the witness’ own perception or within his actual knowledge. State v. Schaffer, 168 Conn. 309, 318-19, 362 A.2d 893 (1975). “Because of the wide range of matters on which lay witnesses are permitted to give their opinion, the admissibility of such evidence rests in the sound discretion of the trial court, and the exercise of that discretion, unless abused will not constitute reversible error.” Id., 319. The record is clear that Sullo knew the defendant and had professional encounters with him in the past so as to satisfy the above standard.
VI
The defendant’s final claim is that the trial court erred in refusing to poll the jury during the trial after an article concerning the trial appeared in the local newspaper. The following facts are pertinent to this claim. Edward McGee, the owner of New England Uniform, the shop where the defendant had purchased police uniform items, was asked whether the defendant had said anything to him when he made his purchases. Out of the presence of the jury, McGee responded that when asked how to spell his occupation,
The defendant does not claim that any particular juror read the article or heard the radio reports, but rather that the court’s refusal to poll the jury deprived him of his state and federal constitutional rights to an impartial jury. U.S. Const., amend. VI, XIV; Conn. Const., art. I, § 8.
“To raise the duty of inquiry by the trial judge to a constitutional level it is not enough for the defendant to show that the information contained in the newspaper article is inadmissible or even that it is arguably prejudicial. A constitutional duty to conduct an inquiry will arise if the character of the information contained in the newspaper article is such that it would so taint the proceeding that no curative instruction could effectively avert the prejudicial effect.” State v. Haskins, 188 Conn. 432, 449, 450 A.2d 828 (1982).
The trial court properly and adequately instructed the jurors when they were impaneled not to read, listen to or watch any media coverage concerning the trial. This instruction was repeated numerous times during the proceedings. The record does not disclose that any juror ignored these instructions. We presume that jurors follow the instructions given by the trial court. State v. Nelson, 17 Conn. App. 556, 568, 555 A.2d 426 (1989). We conclude that the trial court did not abuse its discretion in denying the defendant’s request.
There is no error.
In this opinion the other judges concurred.
The defendant also was charged with one count of coercion in violation of General Statutes § 53a-192 (4). Prior to jury deliberations, the court granted the defendant’s motion for judgment of acquittal on that count.
“[General Statutes] Sec. 53a-130. criminal impersonation: class b misdemeanor, (a) A person is guilty of criminal impersonation when he: (1) Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another; or (2) pretends to be a representative of some person or organization and does an act in such pretended capacity with intent to obtain a benefit or to injure or defraud another; or (3) pretends to be a public servant, or wears or displays without authority any uniform or badge by which such public servant is lawfully distinguished, with intent to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense.”
General Statutes § 53a-72a (a) (1) (A) provides: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by use of force against such person . . . .” (Emphasis added.)
“General Statutes § 53a-65 (7) (B) defines ‘use of force’ as ‘use of actual physical force or violence of superior physical strength against the victim.’ ” State v. Hufford, 205 Conn. 386, 391, 533 A.2d 866 (1987).
The state asks us to distinguish State v. Hufford, 205 Conn. 386, 391, 533 A.2d 866 (1987), on the ground that unlike the “mere touching” in Hufford, the sexual contact in this case was forceful in that by grabbing the victim’s breasts the defendant exercised excessive force and thereby hurt her. We decline to distinguish Hufford on that basis because we conclude that the degree of force used in the sexual contact is not the controlling factor for the crime of sexual assault in the third degree but rather the force used to compel the sexual contact. Id.
Both the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee the right of a defendant not to be deprived of his liberty without due process of law.
The defendant concedes that he did not raise his state constitutional claim at trial in that his motion to suppress only cited the federal constitution. Despite his failure to raise his state claim distinctly at trial, the defendant
It is unnecessary for us to decide whether the defendant’s state constitutional claim is reviewable under Evans because the defendant has not provided us with any separate analysis of that issue. We, therefore, decline to undertake such an analysis and review this claim with reference only to the federal constitution. See State v. Nelson, 17 Conn. App. 556, 568-69, n.9, 555 A.2d 426 (1989).
A third out-of-court identification occurred on June 24, 1987, when the victim was at the Danbury courthouse. While in the hallway, the victim recognized the defendant as he stepped out of an elevator.
- Even if we were to assume, arguendo, that the trial court erred in admitting this evidence, in view of the complainant’s solid identification testimony of the defendant, such an error would be harmless.