90 Conn. App. 445 | Conn. App. Ct. | 2005
Opinion
The defendant, Richard Hamlin, appeals from the judgment of conviction, rendered after a jury trial, of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and one count of carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that (1) his sixth amendment right to counsel was violated when a statement of his elicited by an alleged agent of the state, without the defendant’s counsel being present, was used against him at trial, (2) the court improperly admitted identification evidence from William Moore and Omar Vaughn in violation of his due process rights, and (3) the application of General Statutes § 53-202k
The jury reasonably could have found the following facts. On June 24, 2001, the defendant and Vaughn were involved in a fight on the sidewalk of 179 Mather Street in Hartford. The following day, Vaughn returned to 179 Mather Street on his bicycle, hoping to “peace up the situation” with the defendant. As Vaughn approached that location, the defendant emerged from a crowd, gun in hand. Vaughn immediately discarded his bicycle and ran. While running, Vaughn was shot in the back of his lower left thigh and knee. The defendant fled with Moore in a gold Oldsmobile Alero.
The defendant was charged by long form information with one count of assault in the first degree in violation of § 53a-59 (a) (5) and one count of carrying a pistol without a permit in violation of § 29-35 (a). The information also contained a notice of intent to seek sentence enhancement pursuant to § 53-202k. On December 16, 2002, the defendant filed a motion to suppress all identification testimony and a motion to dismiss the sentence enhancement allegation. After a hearing, both motions were denied. Following trial, the jury found the defendant guilty on both counts of the information. The court subsequently sentenced the defendant to thirteen years imprisonment, five years mandatory minimum, followed by ten years of special parole. After filing the present appeal with this court, the defendant filed with the trial court a “motion for rectification and/or enlargement of the record,” in which he requested, inter alia, a hearing pursuant to State v. Floyd, 253 Conn. 700, 731-38, 756 A.2d 799 (2000). By memorandum of decision filed June 23, 2004, the court granted in part and denied in part that motion.
The defendant first raises a claim concerning his sixth amendment right to counsel. After filing this appeal, the defendant filed a postjudgment motion with the trial court to enlarge the record by holding a hearing to include additional facts as to whether his sixth amendment right to counsel was implicated when he spoke to Moore while in a holding cell. Citing Practice Book § 5-2,
The following additional facts are pertinent to the defendant’s claim. On the day of the shooting, Moore voluntarily entered the Hartford police station and gave a statement. In that statement, he indicated that, from his car, he had witnessed the events that unfolded in front of 179 Mather Street. Moore stated that after the assailant shot Vaughn, the assailant entered Moore’s
On December 16, 2002, the defendant filed a motion to suppress “any and all testimony concerning any in-court or out-of-court identification of the defendant by any witness, including, but not limited to, Omar Vaughn.” On December 17,2002, Moore, who was being held in lieu of bond on various charges regarding an unrelated domestic incident, was brought to court pursuant to a writ of habeas corpus ad testificandum. On that day, the defendant and Moore were placed in the same holding cell at the Hartford Superior Court. While in the cell, the defendant stated to Moore, “You know, if they put you on the stand, just say you wasn’t with me.” That same day, Moore made his first identification of the defendant as the assailant in this case. Moore testified at both the December 18, 2002 suppression hearing and at trial as to the defendant’s statement in the holding cell, which the prosecution used as evidence of the defendant’s consciousness of guilt.
The crux of the defendant’s contention is that when Moore entered the holding cell on December 17, 2002, he did so as an agent of the state. As such, he argues that admission of his statement to Moore at trial violated his right to counsel. The defendant concedes that his claim was not preserved at trial. He first raised the claim in his postjudgment motion for rectification or enlargement of the record, but the court did not reach the claim. Rather, it declined review pursuant to Practice Book § 5-2.
This court lacks the requisite factual basis to entertain the defendant’s claim as required by Golding's first prong. At its essence, the claim alleges that Moore was a state agent who deliberately elicited the defendant’s
By contrast, prior to trial, defense counsel in the present case was aware of the holding cell conversation between the defendant and Moore. As the trial court stated in its memorandum of decision on the defendant’s motion for rectification or enlargement of the record: “The defendant knew about the circumstances regarding Moore being placed in the same cell with the defendant on the day that it occurred and was given the opportunity to address the witness regarding that circumstance during counsel’s cross-examination of the witness. Defense counsel had multiple opportunities to explore this situation when Moore was on the [witness] stand. Not only did the defense not explore the situation while the witness was on the stand, but counsel objected when the state’s attorney sought to examine the witness regarding the witness and the defendant
Floyd presented the unusual situation in which a defendant was precluded from perfecting the record due to new information obtained after judgment. State v. Floyd, supra, 253 Conn. 730. The present case is inapposite. The defendant was aware, prior to both the suppression hearing and trial, that the holding cell conversation had occurred. Accordingly, we refuse to remand the matter for the requested Floyd hearing.
The remaining question is whether the court’s decision not to decide the defendant’s sixth amendment claim was proper. Practice Book § 5-2 provides: “Any party intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief under Section 5-1 or state the question distinctly to the judicial authority on the record before such party’s closing argument and within sufficient time to give the opposing counsel an opportunity to discuss the question. If the party fails to do this, the judicial authority
II
The defendant next challenges the admission of identification evidence from Moore.
The defendant claims that the court violated his federal constitutional right to due process of law by denying his pretrial motion to suppress Moore’s identification of him as the assailant. The defendant argues that the procedure that led to Moore’s identification of him was impermissibly suggestive, rendering the resulting identification unreliable.
The following additional facts are relevant to the defendant’s claim. On December 17, 2002, Moore met with James C. Rovella, an inspector with the state’s attorney’s office. During that meeting, Rovella presented Moore with a stack of photographs. As Rovella recounted at the suppression hearing: “I instructed [Moore that] I had eight photographs. They were all numbered one through eight on the back. I handed them to him in a stack. I told him to look through each individual photograph. And I told him I’m not saying that the person’s in here or he’s not in here. I just want to look — have him look through the photographs and
Following the hearing, the court denied the defendant’s motion to suppress. The court concluded that the identification procedure was not unnecessarily suggestive. As it stated: “The police . . . used multiple photographs and did not rely on a single photograph. [The array was] comprised of photographs of individuals who all strongly resembled the defendant. There were no suggestions made to . . . Moore that a photograph of the suspected perpetrator was located in the [array] presented to [him]. There were no verbal or physical hints given by the police to . . . Moore to suggest . . . who [he] should select from the [array] or even that [he] should select someone from [the array].” “An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification.” State v. White, 229 Conn. 125, 161-62, 640 A.2d 572 (1994). After carefully reviewing the record, we agree with the trial court that the identification procedure here does not give rise to such a likelihood.
Although the court also determined that the identification was rehable, we need not address that aspect of its decision. “If the procedures used to identify the defendant were not unnecessarily suggestive, we need not independently analyze whether the identification was reliable.” (Internal quotation marks omitted.) State v. Taylor, supra, 239 Conn. 499. Accordingly, the court’s denial of the defendant’s motion to suppress the identification evidence from Moore was proper.
The defendant’s final claim is that application of § 53-202k is void for vagueness in a prosecution for violation of § 53a-59 (a) (5).
We note first the applicable legal principles. “The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution.” Id. “A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, [and a court makes] every presumption in favor of its validity. ... To demonstrate that [a statute] is unconstitutionally vague as applied to him, the [defendant] therefore must . . .
“The general rule is that the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue. ... To do otherwise, absent the appearance that the statute in question intrudes upon fundamental guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of [the statute]. . . . Thus, outside the context of the first amendment, in order to challenge successfully the facial validity of a statute, a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of [the] case.” (Internal quotation marks omitted.) State v. Lewis, 273 Conn. 509, 514-15, 871 A.2d 986 (2005).
The defendant in the present case cannot overcome that threshold burden. Our Supreme Court has explained that “in evaluating the defendant’s challenge to the constitutionality of the statute, we read the statute narrowly in order to save its constitutionality, rather than broadly in order to destroy it. ... In so doing,
Following trial, the defendant was convicted of assault in the first degree in violation of § 53a-59 (a) (5). Section 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when . . . (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.” That offense is a class B felony.
Section 53-202k
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53-202k provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”
The court granted the defendant’s request to rectify the record to include his discovery requests.
Practice Book § 5-2 provides: “Any party intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief under Section 5-1 or state the question distinctly to the judicial authority on the record before such party’s closing argument and within sufficient time to give the opposing counsel an opportunity to discuss the question. If the party fails to do this, the judicial authority will be under no obligation to decide the question.”
Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. State v. Jordan, 64 Conn. App. 143, 150, 781 A.2d 310 (2001).
At oral argument before this court, the defendant conceded that nothing in the record indicates that Moore received anything in exchange for cooperating with the prosecution. Moreover, Moore testified at trial that he was neither promised nor did he expect anything in terms of help in his pending case.
We note further that the limited record before us discloses no evidence that Moore was anything other than a passive listener in the holding cell. Our Supreme Court recently explained that “[a] defendant does not . . . make out a constitutional violation simply by showing that an informant, either through prior arrangement or voluntarily, reported [the defendant’s] incriminating statements to the police. . . . Although the government [has] an affirmative obligation not to solicit incriminating statements from the defendant in the absence of his counsel, there is no constitutional violation when a government informant merely listens and reports.” (Citation omitted; internal quotation marks omitted.) State v. Swinton, supra, 268 Conn. 859. In the absence of evidence to the contrary, the defendant’s claim also appears to fail to satisfy Golding’s third prong.
Unlike the situation in Floyd, the defendant did not file a motion for review. See Practice Book § 66-7.
In Biller Associates v. Rte. 156 Realty Co., 52 Conn. App. 18, 24, 725 A.2d 398 (1999), aff'd, 252 Conn. 400, 746 A.2d 785 (2000), we concluded that, although “less than clear when raised on the record . . . the defendant satisfied Practice Book § 5-2 by distinctly raising [the] claim in its posttrial brief.” The defendant has presented no authority, nor has this court found any, indicating that a claim raised for the first time in a postjudgment motion complies with Practice Book § 5-2.
The defendant also alleges that because Vaughn’s identification was premised on information “learned from unidentified sources,” Vaughn’s identification of the defendant violated his constitutional rights. His argument lacks legal analysis and citation to legal authority. “We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) State v. Colon, supra, 272 Conn. 153 n.19. We therefore decline to address his claim.
The state argues in response that Moore’s viewing of photographs was not an identification of the defendant, but rather merely a confirmation that the defendant was, indeed, the person the police had arrested. See, e.g., People v. Vargas, 118 Misc. 2d 477, 480-81, 461 N.Y.S.2d 678 (1988) (“Where the defendant is known to and is a familiar figure to the witness before the crime, there is virtually no danger of a trial misidentification owing to a pretrial viewing .... Where the witness . . . knows the defendant, suggestiveness is irrelevant . . . .” [Citation omitted.]). Because we agree with the trial court that the identification procedure was not impermissibly suggestive, we need not consider the state’s argument.
In his brief, the defendant posits that “in every case where the state proves the offense of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), intentionally causing physical injury ‘by means of the discharge of a firearm,’ it also will have proved that the person who committed that class B felony used ‘a firearm’ under General Statutes § 53-202k.” That argument echoes the refrain of a double jeopardy claim, which the defendant has not pursued on appeal. Moreover, in State v. McMahon, 257 Conn. 544, 558-62, 778 A.2d 847 (2001), cert. denied, 534 U.S. 1130, 122 S. Ct. 1069, 151 L. Ed. 2d 972 (2002), our Supreme Court held that application of the § 53-202k sentence enhancement provision to an underlying offense which has, as an element, the use of a firearm, does not place a defendant in double jeopardy for that same offense.
The defendant fails to identify the precise constitutional provision under which his claim is brought. Because his brief contains no independent state constitutional analysis, we limit our review to the federal constitution. See State v. Merriam, 264 Conn. 617, 631 n.17, 835 A.2d 895 (2003).
Connecticut appellate courts consistently have held that General Statutes § 53-202k is a sentence enhancement provision, not a separate felony offense. See State v. Dash, 242 Conn. 143, 146, 698 A.2d 297 (1997); State v. Fernandez, 52 Conn. App. 599, 616, 728 A.2d 1, cert. denied, 249 Conn. 913, 733 A.2d 229, cert. denied, 528 U.S. 939, 120 S. Ct. 348, 145 L. Ed. 2d 272 (1999).
“Definitive words, such as ‘must’ or ‘shall,’ ordinarily express legislative mandates of a nondirectory nature.” Doe v. Statewide Grievance Committee, 240 Conn. 671, 681, 694 A.2d 1218 (1997).
