State v. Johnson ( 2014 )

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STATE OF CONNECTICUT v. ANTHONY JOHNSON
(AC 35657)
Gruendel, Bear and West, Js.
Argued February 10—officially released April 29, 2014
(Appeal from Superior Court, judicial district of New
Britain, Alander, J.)
Norman A. Pattis, with whom was Daniel M. Erwin,
for the appellant (defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, was Brian Preleski,
state’s attorney, for the appellee (state).
Opinion
BEAR, J. The defendant, Anthony Johnson, appeals
from the judgment of conviction of one count of murder
in violation of General Statutes § 53a-54a. On appeal,
the defendant claims that (1) the court improperly
denied his motion to suppress two photographic array
identifications, and (2) this case should be remanded
to the trial court for an evidentiary hearing, where he
can submit expert testimony on the fallibility of eyewit-
ness testimony, so that the trial court can determine if
he is entitled to a new trial in light of the Supreme
Court’s decision in State v. Guilbert, 306 Conn. 218, 49
A.3d 705 (2012), which was decided after the defen-
dant’s trial.1 We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts on the basis of the evidence presented at trial. On
October 31, 2009, several people, including the defen-
dant and Iyshia Lamboy, attended a Halloween party
at the Paris Bar in Bristol. Lamboy had known the
defendant for three or four years. After the party broke
up, Lamboy stopped at a Sunoco gas station, where
the defendant, Freddy Felix (victim), and others were
engaged in an argument. Lamboy noticed the red Acura
automobile that the defendant was known to drive also
at the Sunoco station. Lamboy later drove to Davis
Drive in Bristol. When she arrived, the defendant’s red
Acura already was parked in the area. Approximately
twenty-five people were gathered around some men,
who were arguing. Lamboy got out of her car and stood
next to the victim, who was standing next to his car.
The defendant was present and standing off to the side.
Two of the men who were arguing got into a fistfight,
but the situation defused after some people agreed to
leave. Soon thereafter, however, the fighting resumed,
and the defendant, after stating that he ‘‘had the heat,’’
walked over to his car, where Lamboy saw him place
a mask over the bottom portion of his face, pull the
hood of his sweatshirt over his head, and put on a dark
nylon glove. Lamboy approached the defendant and
began shouting at him. Other people then pulled her
away from the defendant. The defendant approached
the victim, pulled a gun from his chest area, and fired
four shots, two of which hit the victim, killing him. The
defendant ran from the area, leaving the red Acura
behind.
Prior to the shooting, Ebony Shell, who lived in a
second floor apartment on Davis Drive, was asleep in
her bedroom when she was awoken by the sounds of
people arguing outside. She looked out of her bedroom
window and saw approximately thirty people gathered.
She recognized the defendant, who was wearing a dark
hooded sweatshirt. The defendant was arguing with a
heavyset woman until two other people pulled her away
from him.2 Shell saw the victim standing next to his
car, arguing with another man whom she knew as Javi.
The defendant then walked around a dumpster and
reemerged with a mask covering part of his face and
his hood raised over his head. He moved his arm toward
his chest; Shell then saw flashes and heard gunfire, and
she closed her curtain. Upon reopening the curtain,
Shell saw a man lying on the ground, and the defendant
was gone.
When the police conducted their investigation, they
found, parked in the area, the red Acura that Lamboy
had seen the defendant driving, which was registered
to the defendant’s father. Inside the car, they found the
defendant’s driver’s license and a photograph of the
defendant and his friend, Javier, which had been taken
and printed at the Halloween party at the Paris Bar.
Very late on October 31, 2009, Michael Bergin picked
up his friend, Anthony Garcia. The two later picked up
the defendant and another man named Lamar. While in
Bergin’s vehicle, Lamar repeatedly asked the defendant
why he shot the victim, and the defendant told Lamar
not to discuss his business, but he later explained that
there had been a fight at the Sunoco gas station, and,
when the argument moved to Davis Drive, he went and
got his gun. Bergin dropped off the defendant and Lamar
at the Plymouth Motor Lodge, and the defendant paid
him with cocaine for the ride. Bergin, fearing that he
could be considered an accessory after the fact, went
to a police station and told officers what he had heard.
Two nights later, the police arrested the defendant at
the Holiday Inn in Southington. On the defendant’s
nightstand was a newspaper clipping about the murder.
The defendant was charged and, after a jury trial,
convicted of one count of murder. The court sentenced
him to forty-five years imprisonment. This appeal fol-
lowed. Additional facts will be set forth as necessary.
I
The defendant claims that the court improperly
denied his motion to suppress the photographic array
identification made by Shell and that it improperly failed
to suppress, sua sponte, a photographic array identifica-
tion made by Lamboy after it heard testimony during
the trial.3 Specifically, he argues that he ‘‘moved to
suppress a photo array identification of the defendant
by witness . . . Shell. . . . The court denied the
motion based upon State v. Marquez, 291 Conn. 122,
967 A.2d 56 [cert. denied, 558 U.S. 895, 130 S. Ct. 237,
175 L. Ed. 2d 163] (2009). . . . [E]ven if the court cor-
rectly applied Marquez, this was error in light of the
state Supreme Court’s ruling in State v. Guilbert, [supra,
306 Conn. 218]. Guilbert calls Marquez into question
and requires reconsideration of the issue presented at
trial.4 The defendant also contends that, now, based
upon the trial testimony the court should have sup-
pressed the photo array identification of . . . Lamboy
as well and raises the claim as to her under State v.
Golding, 213 Conn. 233, 567 A.2d 823 (1989), as it is
a due process issue.’’5 (Citation omitted.) He further
contends that ‘‘[t]he absence of double blind, sequential
arrays makes a photo array unduly suggestive in single
perpetrator identifications.’’6 (Emphasis omitted.) We
are not persuaded.7
‘‘[A] claim of an unnecessarily suggestive pretrial
identification procedure is a mixed question of law and
fact.’’ State v. Marquez, supra, 291 Conn. 137.
‘‘[B]ecause the issue of the reliability of an identification
involves the constitutional rights of an accused . . .
we are obliged to examine the record scrupulously to
determine whether the facts found are adequately sup-
ported by the evidence and whether the court’s ultimate
inference of reliability was reasonable. . . . [T]he
required inquiry . . . 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 identi-
fication was nevertheless reliable based on an examina-
tion of the totality of the circumstances. . . . To
prevail on his claim, [a] defendant has the burden of
showing that the trial court’s determinations of sugges-
tiveness and reliability both were incorrect. . . .
‘‘Because the inquiry into whether evidence of pre-
trial identification should be suppressed contemplates
a series of factbound determinations, which a trial court
is far better equipped than this court to make, we will
not disturb the findings of the trial court as to subordi-
nate facts unless the record reveals clear and manifest
error.’’ (Internal quotation marks omitted.) State v.
Manson, 118 Conn. App. 538, 543, 984 A.2d 1099 (2009),
cert. denied, 295 Conn. 902, 988 A.2d 878 (2010), quoting
State v. Ledbetter, 275 Conn. 534, 547–48, 881 A.2d 290(2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164
L. Ed. 2d 537 (2006).
The following additional facts are relevant to our
discussion. On May 11, 2011, the defendant filed a
motion to suppress Shell’s photographic array identifi-
cation on the ground that the procedure employed by
the police was unduly suggestive. At the May 18, 2011
hearing on the motion to suppress, two witnesses were
presented, Shell and Detective Peter Dauphinais. Shell
testified that she had ‘‘seen [the defendant] around and
[had] heard talk of him,’’ that she knew what he looked
like, and that she had seen him ‘‘several times,’’ but
that she had never spoken to him. She testified about
the shooting she had witnessed in the early morning
hours of November 1, 2009, and she identified the defen-
dant as the shooter. She stated that she was certain
that it was the defendant whom she saw. She also testi-
fied that the area was well lit and that she had no trouble
seeing from her bedroom window.
Shell also explained that she voluntarily, on her own
initiative, went to the police station on November 5,
2009, where she was asked to view a photographic
array. She testified that she neither was coached by the
police nor directed in any way to pick the defendant’s
photograph from the array, but that she picked the
defendant’s photograph because he was the person
whom she saw shoot the victim. Defense counsel asked
Shell if that was the first time she had spoken to police
about this case. Shell said that the police had knocked
on her door the morning after the shooting and that
she had spoken to them at that time. Counsel did not
ask Shell about the content of that conversation.
Dauphinais testified that Shell previously had told
police that she had not seen the shooting. He explained
that she approached them later, however, and gave
them information. Dauphinais also testified about the
photographic array. He testified that the defendant was
included in the array because he was a suspect and
that the array procedure was blind, meaning that no
names were listed, but that it was not a double-blind
procedure, meaning that it was given by someone who
knew which person in the array was a suspect. He also
stated that no video was taken of the photographic
array identification procedure.
After these two witnesses were presented, defense
counsel argued that Shell initially told police she had
not seen anything and that she then showed up at the
police station several days later claiming to have seen
the shooting from her bedroom window. Counsel
argued that the procedure used in the identification
process was not videotaped, that it was a nondouble-
blind array, and that such procedures have ‘‘the danger
of subtle influence and subtle bias and subtle suggestion
. . . .’’8 He argued that ‘‘my claim would be that it is
inherently suggestive to show a person . . . an array
that contains a suspect in a nondouble-blind situation
after he’s been arrested and the community has been
canvassed on multiple occasions for information. I con-
cede there are gaps in that theory, but that’s my claim,
Judge.’’ Defense counsel did not file a motion to sup-
press Lamboy’s photographic array identification, nor
object to its introduction, although he argues on appeal
that the court should have suppressed it, sua sponte,
nonetheless.
In opposition to the motion to suppress Shell’s photo-
graphic array identification, the state argued before the
trial court that the law does not require double-blind
procedures or videotaping. It further argued that in this
case, Shell testified that she had familiarity with the
defendant and that she was certain of her identification
and, therefore, suppression was not warranted.
Following testimony and the arguments of counsel,
the court specifically found: ‘‘On November 5, 2009,
[Shell] went to the police station to view a photo array.
Prior to viewing the array, she was given a witness
instruction for photo identification form, which, among
other things, said it was as important to clear innocent
people as to identify the guilty. Persons in the photos
may not look exactly as they did on the date of the
incident because features like facial or head hair can
change. The person you saw may or may not be in
these photographs, and the police will continue and
investigate this incident whether you identify someone
or not.
‘‘[Shell] was then shown a photo lineup with eight
pictures, all of them African-American males, one of
which included the defendant. She circled the defen-
dant[’s] [photograph], stating that the guy in number
four is the person I saw shooting. This is the guy I know
to be AJ, and this is the guy who shot the man over by
the dumpster. She then signed the form.
‘‘The photo array was administered by . . . Detec-
tive Peter Dauphinais. Peter Dauphinais was aware that
the defendant was the suspect in the shooting, so it
was not a double-blind photo array . . . . [Shell] had
previously given a . . . statement to officers prior to
viewing the photo array, indicat[ing] that she had not
seen anyone involved in the shooting.’’
After finding these facts, the court explained to
defense counsel: ‘‘[B]asically, what you’re asking for is
something I cannot give. You’re asking that I find as a
matter of law that a double-blind photo array is
required; that’s not currently the law in Connecticut.
. . . The law is governed by State v. Marquez, [supra,291 Conn. 122], and, in determining whether a pretrial
identification procedure violated a defendant’s due pro-
cess rights, I have to find two things—that the particular
identification procedure employed was unnecessarily
suggestive, and, two, if the procedure was unnecessarily
suggestive . . . [whether] the identification neverthe-
less [was] reliable in light of the totality of the sur-
rounding circumstances.’’
On the basis of the facts found and the relevant law,
the court held: ‘‘I find that the photo array was not
unnecessarily suggestive. There’s nothing in the compo-
sition of the photographic array that highlights the
defendant in any way, he’s not unique in any way, there’s
eight photos in the lineup. The witness was not either
consciously or subconsciously—there’s no evidence
that [Shell] was, through police conduct, [that] they
pointed to the defendant as the person she should pick
out of the lineup. There’s really nothing suggestive. . . .
[F]or those reasons, I don’t even get to the reliability
. . . . I don’t get to the reliability issue because I don’t
find that the array procedure was unnecessarily sugges-
tive. So, for those reasons, the motion to suppress is
denied.’’ The court issued no ruling regarding Lamboy’s
photographic array identification of the defendant
because the defendant did not include her identification
in his motion to suppress, nor did he offer an objection
to the admission of this evidence at trial.
On appeal, the defendant contends that the court
should have suppressed both photographic array identi-
fications because his right to due process was violated
by allowing them into evidence. The state contends
that the issue concerning Lamboy’s identification is not
reviewable because the defendant never offered an
objection to this evidence, and, therefore, the record
is not adequate for us to review the claim. Nevertheless,
the state further contends that the introduction into
evidence of either or both photographic array identifica-
tions was not improper because both Shell and Lamboy
were familiar with the defendant before looking at the
arrays, and the concerns raised by the defendant regard-
ing suggestiveness and untrustworthiness in eyewitness
identification procedures apply only to stranger identifi-
cations. We first conclude that there is no merit to the
defendant’s claim that the court, sua sponte, should
have suppressed evidence of Lamboy’s photographic
array identification. The defendant offers no law that
supports a holding that the trial court committed revers-
ible error for failing to suppress evidence, ‘‘based upon
trial testimony,’’ after that evidence had been offered
and admitted without any objection at any time during
the trial. Accordingly, we conclude that further discus-
sion of this aspect of the defendant’s claim is unneces-
sary. As to the defendant’s claim that his due process
rights were violated because the police failed to utilize
a double-blind procedure during Shell’s photographic
array identification and, therefore, that the array identi-
fication procedure was unduly suggestive, we agree
with the trial court that the procedure employed in this
case was not unduly suggestive.9
Over the course of time, our Supreme Court has con-
tinued to maintain ‘‘a stern test for suggestiveness: An
identification procedure is unnecessarily suggestive
only if it gives rise to a very substantial likelihood of
irreparable misidentification.’’ (Emphasis in original;
internal quotation marks omitted.) State v. Marquez,
supra, 291 Conn. 139. In Marquez, however, our
Supreme Court revisited this test and determined that,
over time, the court, essentially, had conflated the sug-
gestiveness prong and the reliability prong. Id., 140–41.
The court, then, redetermined ‘‘what makes a particular
identification procedure ‘suggestive’ enough to require
the court to proceed to the second prong and to con-
sider the overall reliability of the identification’’ and set
forth a new test for suggestiveness. Id., 142. The court
explained that ‘‘a determination as to whether a particu-
lar identification procedure is ‘unnecessarily sugges-
tive’ must focus on the [following] factors . . . .’’ Id.,
144. ‘‘The first factor concerns the composition of the
photographic array itself. In this regard, courts have
analyzed whether the photographs used were selected
or displayed in such a manner as to emphasize or high-
light the individual whom the police believe is the sus-
pect. . . . The second factor, which is related to the
first but conceptually broader, requires the court to
examine the actions of law enforcement personnel to
determine whether the witness’ attention was directed
to a suspect because of police conduct. . . . In consid-
ering this [factor, the court should] look to the effects
of the circumstances of the pretrial identification, not
whether law enforcement officers intended to prejudice
the defendant. . . . It stands to reason that police offi-
cers administering a photographic identification proce-
dure have the potential to taint the process by drawing
the witness’ attention to a particular suspect. This could
occur either through the construction of the array itself
or through physical or verbal cues provided by an offi-
cer.’’ (Citations omitted; internal quotation marks omit-
ted.) Id., 142–44.
The court further explained: ‘‘In evaluating the sug-
gestiveness of a photographic array, a court should look
to both the photographs themselves and the manner in
which they were presented to the identifying witness.
. . . We consider the following nonexhaustive factors
in analyzing a photographic array for unnecessary sug-
gestiveness: (1) the degree of likeness shared by the
individuals pictured . . . (2) the number of photo-
graphs included in the array . . . (3) whether the sus-
pect’s photograph prominently was displayed or
otherwise was highlighted in an impermissible manner
. . . (4) whether the eyewitness had been told that the
array includes a photograph of a known suspect . . .
(5) whether the eyewitness had been presented with
multiple arrays in which the photograph of one suspect
recurred repeatedly . . . and (6) whether a second
eyewitness was present during the presentation of the
array.’’ (Citation omitted; internal quotation marks
omitted.) Id., 161.
In the present case, the defendant essentially argues
that a nondouble-blind photographic array procedure,
per se, is unduly suggestive. We disagree. In Marquez,
our Supreme Court disagreed with the trial court’s
determination on this very issue, namely, that a nondou-
ble-blind photographic array procedure, per se, is
unduly suggestive. Id., 134–35. Our Supreme Court held
that the factors previously set forth must be examined
on a case-by-case basis and that a nondouble-blind pro-
cedure is not unduly suggestive, per se. Id., 156, 164–65.
In the present case, the trial court specifically found
that Shell was given a proper witness instruction before
she examined the photographic array, that the police
did not consciously or subconsciously point her toward
the defendant’s photograph, and that she picked the
defendant out of the array of eight photographs and
stated that he was the shooter and that she knew him
as AJ. The court then concluded that there was nothing
unduly suggestive about the procedure employed dur-
ing Shell’s photographic array identification. On the
basis of the court’s findings, and the factors set forth
in Marquez, we agree that the procedure was not
unduly suggestive.
II
The defendant next claims that this case should be
remanded to the trial court for an evidentiary hearing,
where he can submit expert testimony on the fallibility
of eyewitness testimony, so that the trial court can
determine if he is entitled to a new trial in light of the
Supreme Court’s decision in State v. Guilbert, supra,
306 Conn. 218, which was decided after the defendant’s
conviction. He further argues that his claim should not
fail on the ground that he never attempted to introduce
expert testimony on this issue at trial, because, under
the state of our law at that time, such testimony would
have been inadmissible. He argues that the change in the
law, essentially, is akin to newly discovered evidence or
withheld evidence, and, therefore, he is entitled to an
evidentiary hearing.
Citing Practice Book §§ 42-53, 42-54, and 42-55, along
with General Statutes § 52-270, the state argues that
this claim is not reviewable because the defendant did
not file a motion or petition for a new trial after our
Supreme Court released its decision in Guilbert. It also
argues that the claim clearly fails to satisfy the standard
for appellate review under the first prong of State v.
Golding, supra, 213 Conn. 239–40, because the defen-
dant never developed a record by attempting to offer
expert testimony on eyewitness fallibility. In the alter-
native, the state argues that the claim is not entitled
to Golding review because it is not of constitutional
magnitude, it is an unpreserved evidentiary claim, and
there is no record for review. We agree with the state
that the record is inadequate for our review.10
Although the defendant argues that it would have
been futile for him to have attempted to offer expert
testimony because such testimony clearly was inadmis-
sible under our law prior to Guilbert, we conclude that
such a motion, at a minimum, would have served to
perfect the record for appellate review, and, without
such a record, the defendant’s unpreserved claim is not
reviewable on direct appeal. Cf. State v. Taft, 306 Conn.
749, 767–69, 51 A.3d 988 (2012) (because evidentiary
hearing required, claim of ineffective assistance of
counsel not appropriate for direct appeal because
record inadequate).
The judgment is affirmed.
In this opinion the other judges concurred.
1
In his appellate brief, the defendant sets forth his second claim as follows:
‘‘The Supreme Court’s reversal on the issue of expert testimony of eyewitness
identifications generates potentially exculpatory evidence and requires a
new trial . . . .’’ During oral argument before this court, he clarified, how-
ever, that he is seeking a conditional remand to the trial court for the holding
of an evidentiary hearing to enable him to present an expert on the issue of
eyewitness identification fallibility, and that the trial court should determine
whether he is entitled to a new trial after conducting the hearing.
2
The defendant stipulated at trial that Lamboy was heavyset.
3
The defendant does not specify what testimony should have triggered
this sua sponte response from the court.
We also note that the defendant does not challenge the in-court identifica-
tions of him made by either Shell or Lamboy.
4
We disagree with the defendant’s contention that our Supreme Court’s
decision in Guilbert calls into question its decision in Marquez. We are
unable to discern anything in Guilbert that would lead us to the conclusion
that Marquez no longer is good law. See State v. Guilbert, supra, 306 Conn.
218; State v. Marquez, supra, 291 Conn. 122.
5
To prevail under Golding, the defendant must establish all of the follow-
ing conditions: ‘‘(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.’’ (Footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40.
6
The state argues that the defendant neither preserved nor properly
briefed an issue regarding simultaneous rather than sequential photographs,
and that we, therefore, should not consider this ‘‘passing’’ reference in the
defendant’s appellate brief. We agree with the state that the issue was neither
raised before the trial court nor properly briefed and analyzed on appeal.
Accordingly, we do not consider it.
7
We note that the prepared yellow record does not contain a written
memorandum of decision or a signed transcript setting forth the court’s
reasons for denying the motion to suppress. See Practice Book § 64-1 (a)
(4). Although we frequently have declined to review claims on appeal due
to an appellant’s failure to provide such information, we will review the
present claim on the basis of the unsigned transcript filed in this matter.
See In re Diamond J., 121 Conn. App. 392, 398–99, 996 A.2d 296, cert. denied,
297 Conn. 927, 998 A.2d 1193 (2010).
8
We note that the defendant has not pursued in his appellate brief a claim
regarding the failure of the police to videotape the identification procedure.
9
The defendant also cites to the enactment, following his conviction, of
General Statutes § 54-1p in further support of his claim. Section 54-1p (c)
(2) provides: ‘‘The identification procedure shall be conducted in such a
manner that the person conducting the procedure does not know which
person in the photo lineup or live lineup is suspected as the perpetrator of
the offense, except that, if it is not practicable to conduct a photo lineup
in such a manner, the photo lineup shall be conducted by the use of a folder
shuffle method, computer program or other comparable method so that the
person conducting the procedure does not know which photograph the
eyewitness is viewing during the procedure . . . .’’
We do not agree with the defendant’s contention that the enactment of
§ 54-1p elevated the best practice procedure of a double-blind array to the
level of a constitutional requirement. As recently explained in C. Tait & E.
Prescott, Connecticut Evidence (5th Ed. 2014) § 8.34, p. 618: ‘‘Out-of-court
identifications may be inadmissible as a matter of federal or state constitu-
tional law if they result from law enforcement procedures that violate due
process because they are (1) unduly suggestive and (2) unreliable in light
of the totality of the circumstances under which they were made. . . . [I]t
is important to note that in 2011, the Connecticut legislature enacted [General
Statutes] § 54-1p, which mandates that law enforcement conduct certain
identification procedures, such as photo lineups, under prescribed rules.
‘‘These rules, while not constitutionally mandated, are designed to
increase the reliability of out-of-court identifications. The statute, however,
is silent on whether violations by law enforcement of these provisions should
affect the admissibility of an eyewitness’ identification. The authors believe
that violations of this statute, except those of constitutional magnitude,
should not affect the admissibility of the identification but would be relevant
to the weight to be accorded the identification or require a cautionary
instruction to the jury. See State v. Ledbetter, [supra, 275 Conn. 534].’’
10
Because we conclude that the defendant has failed to provide a record
adequate for appellate review, we find it unnecessary to determine whether
his claim is evidentiary, constitutional, or evidentiary but with constitutional
implications. See generally State v. Crespo, 303 Conn. 589, 606, 35 A.3d 243(2012) (‘‘although the defendant’s unpreserved claim is evidentiary in nature,
the issues implicated in this case are of constitutional magnitude’’).