85 Conn. App. 786 | Conn. App. Ct. | 2004
Opinion
The defendant, Troy Gardner, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress eyewitness identifications and (2) denied his motion for a mistrial due to prosecutorial misconduct. We affirm the judgment of the trial court.
I
The defendant first claims that the court improperly denied his motion to suppress the identifications made at the one-on-one show-ups by Smart and Sanchez
A
When the police shined the light on the defendant, Smart immediately and without any doubt identified the defendant as the man who had not worn a mask when robbing the store and pointing a gun at him. Although the defendant included the Smart identification in his motion to suppress, he later conceded its reliability at a hearing on that motion.
We are likewise bound by the defendant’s concession. Common sense dictates that when a defendant concedes the admissibility of evidence against him and later claims that admission of the evidence constituted error, we do not consider the merits of the claim. State v. Fisher, 57 Conn. App. 371, 376, 748 A.2d 377, cert. denied, 253 Conn. 914, 754 A.2d 163 (2000); State v. Maisonet, 16 Conn. App. 89, 97, 546 A.2d 951, cert. denied, 209 Conn. 816, 550 A.2d 1086 (1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1127, 103 L. Ed. 2d 189 (1989). A defendant who concedes the admissibility of evidence “cannot be allowed later to complain that those concessions have rendered his trial unfair.” State v. Cruz, 75 Conn. App. 500, 511, 816 A.2d 683 (2003), aff'd, 269 Conn. 97, 848 A.2d 445 (2004).
B
Unlike Smart, Sanchez initially had difficulty identifying the defendant as one of the robbers. Sanchez told police that he thought the defendant was the man who was not wearing a mask during the robbery, but that he could not be 100 percent sure. He later testified at the suppression hearing that his uncertainty was due to the fact that the defendant was moving his face during the viewing and was wearing different clothing than he wore during the robbery. Furthermore, Sanchez testified that he was shaken up and nervous following the robbery.
Later that night at the police station, however, Sanchez told police that the man he viewed at the show-up was indeed the person who had robbed his store
In determining whether identification procedures violate a defendant’s due process rights, “[t]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect. . . . An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification.” (Internal quotation marks omitted.) State v. Cook, 262 Conn. 825, 832, 817 A.2d 670 (2003). We conclude that the identification procedure was not unnecessarily suggestive and, therefore, do not address its reliability.
“A one-on-one show-up does place upon the identification process an inherent level of suggestiveness and susceptibility to misidentification. . . . Show-ups, however, and procedures like them tend under some circumstances to ensure accurate identifications and the benefit of promptness not only aids reliability but permits a quick release of an innocent party if there is no positive identification, allowing the police to resume the investigation with only a minimum of delay.” (Citation omitted; internal quotation marks omitted.) State v. Mills, 57 Conn. App. 356, 361, 748 A.2d 891 (2000).
The fact that Sanchez did not immediately identify the defendant at the show-up but only did so later is a fact that supports the conclusion that the procedure was not unnecessarily suggestive. If the procedure had been so, the witness would have been more likely to make an immediate identification. Accordingly, we cannot conclude that either show-up identification procedure violated the defendant’s due process right to a fair trial.
II
The defendant next claims that the court improperly denied his motion for a mistrial due to prosecutorial misconduct. We disagree.
The defendant points out a single remark made during the prosecutor’s rebuttal closing argument to the jury as
“The standard for review of an action upon a motion for a mistrial is well established. While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Taft, 258 Conn. 412, 418, 781 A.2d 302 (2001).
In applying the abuse of discretion standard to a claim of prosecutorial misconduct, we engage in a two step analysis. We ask whether prosecutorial misconduct has occurred and, if so, whether that misconduct deprived the defendant of his due process right to a fair trial. See State v. Coney, 266 Conn. 787, 808, 835 A.2d
The judgment is affirmed.
In this opinion the other judges concurred.
Although the defendant stated on his appeal form that he is appealing from the court’s “finding of violation of probation,” he raises no claim in this court as to that judgment, and we therefore dismiss that portion of his appeal.
The police never apprehended the masked robber, who apparently left the house before the police arrived.
At the hearing on the motion to suppress, the court asked defense counsel in relevant part, “Are you conceding that, based on the testimony here, that . . . his identification is reliable under all of the circumstances?” Defense counsel responded, “I would concede the reliability in regard to Mr. Smart.”