State v. Salmond

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STATE OF CONNECTICUT v. DENNIS SALMOND
(AC 40237)
Alvord, Elgo and Sullivan, Js.
Syllabus
Convicted of the crimes of murder and criminal possession of a pistol or
revolver in connection with the shooting death of the victim, the defen-
dant appealed. The defendant’s conviction stemmed from an incident
in which he allegedly approached the victim’s parked vehicle and fatally
shot him. The victim’s friend, J, was in the vehicle at the time, and he
was a witness to the shooting. J identified the defendant as the shooter
from photographic arrays that were shown to him by the police, and
later identified the defendant as the shooter before the jury during
trial. On appeal, the defendant claimed that the trial court violated his
constitutional right to due process by denying his motion to suppress
J’s in-court identification of him, and abused its discretion by denying
his request for a special credibility instruction with respect to J’s testi-
mony. Held:
1. The trial court did not abuse its discretion by allowing J to make an in-
court identification of the defendant: the court’s determination that,
although the out-of-court identification procedure was unnecessarily
suggestive, the state had proven the reliability of J’s in-court identifica-
tion by clear and convincing evidence was supported by the record,
which demonstrated that J was personally familiar with the defendant,
that J had the opportunity to view the defendant in broad daylight on
the morning of the murder from the front passenger seat of the motor
vehicle and again as J fled from the scene and saw the defendant
unmasked, that J’s description of the shooter’s appearance, which was
given prior to his identification of the defendant from a photographic
array, was generally consistent with the defendant’s appearance as cap-
tured by surveillance video, as described by a 911 caller, and as testified
to by J at trial, and that the eight day time period between the crime
and J’s interview in which he identified the defendant was not so long
as to render his identification unreliable; furthermore, any alleged evi-
dentiary error as to the in-court identification was harmless and had
very little, if any, likelihood of affecting the jury’s verdict, as the state
had a strong case against the defendant even without J’s in-court identifi-
cation.
2. The defendant’s unpreserved claim that the trial court should have granted
his request to charge and charged the jury that the out-of-court identifica-
tion procedure was not substantive evidence of guilt due to its sugges-
tiveness was not reviewable, the defendant having failed to raise before
the trial court the particular objection that he asserted on appeal; the
record demonstrated that the defendant’s request to charge did not
specifically state that the out-of-court identification procedure was not
substantive evidence of guilt due to its suggestiveness, and although
defense counsel objected to the court’s proposed jury charge regarding
the identification of the defendant, he merely referred the court to the
language in the defendant’s request to charge, which did not address
whether the jury should be permitted to use the out-of-court identifica-
tion as substantive evidence of the defendant’s guilt.
3. The trial court did not abuse its discretion in denying the defendant’s
request for a special credibility instruction regarding J’s testimony: there
was no basis in the record for the jury to reasonably conclude that J
was involved in the murder of the victim so as to warrant an accomplice
instruction, as the jury could have reasonably found that J and the victim
were close friends and had known each other for eight or nine years,
and that J pleaded with the defendant to stop shooting at the victim;
moreover, the defendant’s claim that the trial court was required to give
a special credibility instruction with respect to J’s testimony because he
was akin to a jailhouse informant was unavailing, as a special credibility
instruction is required in situations where a prison inmate has been
promised a benefit by the state in return for his testimony regarding
incriminating statements made by a fellow inmate, and the trial court
was not required to give a special credibility instruction under the cir-
cumstances here, where J, an incarcerated witness, had testified con-
cerning events surrounding the crime that he had witnessed outside of
prison, the court’s general credibility instruction having been sufficient
under those circumstances.
Argued October 11, 2017—officially released February 13, 2018
Procedural History
Substitute information charging the defendant with
the crimes of murder and criminal possession of a pistol
or revolver, brought to the Superior Court in the judicial
district of Fairfield, geographical area number two,
where the charge of murder was tried to the jury before
Blawie, J.; thereafter, the court, Blawie, J., denied in
part the defendant’s motion to suppress; verdict of
guilty; subsequently, the charge of criminal possession
of a pistol or revolver was tried to the court, Blawie,
J.; judgment of guilty, and the defendant appealed;
thereafter, the court, Blawie, J., issued an articulation
of its denial of the defendant’s motion to suppress.
Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were John C. Smriga,
state’s attorney, and Pamela J. Esposito, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
SULLIVAN, J. The defendant, Dennis Salmond,
appeals from the judgment of conviction of murder in
violation of General Statutes § 53a-54a (a) and criminal
possession of a pistol or revolver in violation of General
Statutes (Rev. to 2013) § 53a-217c (a) (1). On appeal,
the defendant claims that the trial court (1) violated
his constitutional right to due process by denying his
motion to suppress an eyewitness’ in-court identifica-
tion of him, and (2) abused its discretion by denying
his request for a special credibility instruction with
respect to the testimony of that eyewitness. We disagree
and, accordingly, affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
This case is the end result of a dispute over ‘‘drug
turf’’ in the east end of Bridgeport. The victim, Kiaunte
‘‘Stretch’’ Ware, lived on Sixth Street in Bridgeport and
sold drugs in that neighborhood. The defendant1 had
recently returned to live in the east end and started
selling drugs on Sixth Street. The defendant was not a
Sixth Street regular, but he ‘‘[w]as . . . out there
enough’’ to be noticed by the victim and his friend,
Richard Jackson. On July 15, 2013, the victim and the
defendant had a physical altercation on Sixth Street.
Later that day, the defendant sent a text message to a
friend stating that he had been jumped by the victim
and another male, who told him that he could not come
on Sixth Street. The defendant further stated that he
‘‘wasn’t hearing [that]’’ and that he was looking for a
gun. On July 16, 2013, the victim pulled a gun on the
defendant while the defendant was with his children
at a nearby park.
Unlike the victim, Jackson had no issue with the
defendant, and the two interacted on four or five occa-
sions in the two weeks prior to the victim’s murder.
On one occasion, Jackson and the defendant shared a
marijuana cigarette and talked for approximately
twenty minutes. On another occasion, the two sat
together on the porch steps of a property on Sixth
Street. Jackson and the defendant also exchanged
remarks as they passed by each other on the street.
Jackson did not witness the July 15, 2013 altercation,
but the next day he was shown a cell phone video
recording of the incident.
On the morning of July 17, 2013, at approximately
7:20 a.m., the victim and Jackson were sitting in a car
outside the victim’s apartment on Sixth Street. The vic-
tim sat in the driver’s seat with his window rolled down,
and Jackson sat next to him in the front passenger
seat. The two friends talked about the July 15, 2013
altercation and Jackson cautioned the victim that his
dispute with the defendant was unnecessary. The defen-
dant walked up Sixth Street wielding a small black
handgun and approached within three feet of the driv-
er’s side of the victim’s car. The defendant was wearing
a black shirt and his face was covered up to the top of
his nose, leaving only his eyes and the top of his head
exposed. The defendant fired at the victim and then
uttered the words ‘‘bitch ass n*****.’’ Jackson told the
defendant to ‘‘chill’’ and that he had ‘‘proven his point.’’
The defendant, however, fired more bullets, hitting the
victim in the left upper neck, left upper shoulder, back
and chest. The defendant then fled.
Jackson also fled because there were outstanding
warrants for his arrest and he feared becoming involved
with the police. As Jackson ran east toward Bunnell
Street through the backyards of houses on Sixth Street,
he said aloud, ‘‘I’m going to jail.’’ He then heard a voice
reply, ‘‘[m]y bad my n*****,’’ and realized that the defen-
dant, whose face was no longer covered, was running
close behind him. The defendant continued running in
the direction of Stratford Avenue.
A juvenile standing in the backyard of a house on
Bunnell Street, which abutted the backyards of houses
on Sixth Street, heard the gunshots and called 911.
Shortly thereafter, police and emergency response per-
sonnel found the unconscious victim, who was later
pronounced dead at Bridgeport Hospital. The police
recovered four spent bullets from the victim’s car, four
spent casings in the roadway and a white tank top in
the grass near the victim’s car. A firearm never was
recovered.
On the basis of video surveillance2 and witness inter-
views,3 Detective Robert Winkler applied for, and was
issued, a warrant for the arrest of the defendant on
July 25, 2013. That same day, Jackson was arrested
on unrelated charges and interviewed by Detectives
Winkler and Dennis Martinez about the victim’s murder.
Initially, Jackson was reluctant to provide the detec-
tives with the assailant’s identity. Jackson stated that
he had been sitting in the victim’s car for approximately
four to seven minutes before the assailant ran up to
the car and started shooting at the victim. He described
the victim’s assailant as a black male at least six feet,
three inches tall, wearing a black shirt and a scarf or
shirt covering most of his face, and wielding a black
small caliber gun. Jackson stated that as he was running
to his girlfriend’s apartment on Bunnell Street, the
assailant, whose face was still covered, ran by him and
continued in the direction of Stratford Avenue. Later
in the interview, Martinez inadvertently used the defen-
dant’s street name, ‘‘Sleep,’’ instead of the victim’s street
name, ‘‘Stretch.’’ Jackson was shown portions of the
Stratford Avenue surveillance video and he confirmed
that the man in the video was the person he recognized
as the assailant. He claimed, however, that he did not
know the assailant’s name. Jackson stated that he had
seen the assailant on Sixth Street previously and would
recognize him if he saw him again. He also stated that
he knew the assailant’s voice because he had heard it
before and that he could match that voice to a face.
The detectives conducted a blind sequential photo
array of eight photographs. When he was shown the
seventh photograph, that of the defendant, Jackson
became quiet and asked to return to his cell multiple
times. The detectives urged Jackson to tell them what
he knew and whether the seventh photograph was the
assailant. Jackson asked to speak alone with Winkler
and attempted to negotiate a release on a promise to
appear on his unrelated charges. Winkler stated multi-
ple times that he could try to help but could not promise
anything. Jackson admitted that he knew the defendant
was the assailant all along, identified him in the seventh
photograph in the array and stated that Martinez already
had used his street name, ‘‘Sleep.’’
On July 30, 2013, the defendant was arrested and
charged with murder and criminal possession of a pistol
or revolver. Prior to trial, the defendant moved to sup-
press Jackson’s out-of-court identification and any sub-
sequent in-court identification of the defendant,
claiming, inter alia, that the procedures used by the
detectives during the out-of-court identification were
unnecessarily suggestive, and that, as a result, any in-
court identification would be tainted by the improper
out-of-court identification. In response, the state con-
tended that it did not seek to offer Jackson’s out-of-
court identification of the defendant at trial.
A seven day jury trial commenced on September 24,
2014. During trial, outside the presence of the jury, the
court conducted a two part evidentiary hearing on the
defendant’s motion to suppress. After reviewing Jack-
son’s videotaped interview and hearing testimony from
Winkler,4 the court determined that the police identifi-
cation procedure was unnecessarily suggestive and sup-
pressed the out-of-court identification. The court
reasoned that Martinez’s inadvertent use of the defen-
dant’s street name and ‘‘showing [Jackson] the surveil-
lance video that only contained [the defendant was]
tantamount to making a suggestion as to who should
be picked out of the [photographic] array.’’
The court then addressed the reliability of any subse-
quent in-court identification. The court heard testimony
from Jackson, who stated that he knew that the defen-
dant was the shooter prior to the interview, but did
not want to provide that information to the detectives.
Jackson testified that there weren’t ‘‘too many different
people . . . on Sixth Street’’ and that he ‘‘[paid] atten-
tion to who was out there.’’ It was important for Jack-
son, who was involved in the sale of narcotics, to know
who the regular people were, ‘‘because other people
could be snitches.’’ Jackson further testified that he had
seen the defendant on Sixth Street four or five times
in the two weeks prior to the shooting, and had become
familiar with both the defendant’s appearance and
voice. Jackson indicated that he would have known
that the defendant was the shooter even if he had not
seen him a second time as he was running away. The
court then asked Jackson the following questions:
‘‘The Court: Sir, you were shown some video by the
detectives that was taken from a street pole camera
that day. Is that right?
‘‘[Jackson]: Yes.
‘‘The Court: Did that video influence or plant the idea
in your mind that [the defendant] was the shooter?
‘‘[Jackson]: No.
‘‘The Court: How sure are you of that?
‘‘[Jackson]: A hundred percent.
‘‘The Court: And did Detective Martinez, using the
name Sleep while he was interviewing you, did that
influence your identification of the defendant here in
court as the shooter of [the victim]?
‘‘[Jackson]: No.’’
On the basis of Jackson’s testimony, the court ruled
that ‘‘the state [had] established by clear and convincing
evidence that under the totality of the circumstances
. . . [Jackson’s] in-court identification . . . [was]
based upon his independent recollection and [was]
untainted by any faulty pretrial identification process.’’
The court made the following findings of fact in support
of its determination: ‘‘[T]his case did not involve a one-
time encounter between an eyewitness and a shooter
who was a total stranger’’; ‘‘[t]he defendant and Jackson
had been together in each other’s company in close
proximity in social settings [on Sixth Street] in the days
leading up to [the victim’s] murder’’; ‘‘Jackson . . . was
already personally familiar with [the defendant] before
[the victim] was murdered’’; ‘‘[Jackson] was also privy
to the bad blood that existed between [the defendant]
and the victim at the time of the shooting’’; ‘‘Jackson
had a chance to view the [defendant] that morning,
both during and after the murder’’; ‘‘Jackson also inter-
acted and spoke with the defendant immediately after
[the defendant] shot [the victim]’’; and ‘‘Jackson demon-
strated an obvious reluctance to cooperate [during his
interview] with [the] detectives.’’ (Emphasis omitted.)
Jackson then testified before the jury and identified
the defendant as the man who shot the victim. Jackson
testified that the main factor in being able to identify
the defendant as the shooter was seeing him unmasked
as they ran away from the crime scene. On October 6,
2014, the jury found the defendant guilty of murder in
violation of § 53a-54a (a) and the court found him guilty
of criminal possession of a pistol or revolver in violation
of General Statutes (Rev. to 2013) § 53a-217c (a) (1).
Thereafter, the court sentenced the defendant to a total
effective sentence of fifty years incarceration. This
appeal followed. Additional facts and procedural his-
tory will be set forth as necessary.
I
The defendant’s principal claim on appeal is that the
trial court violated his federal constitutional right to due
process by denying his motion to suppress Jackson’s
in-court identification of him.5 The defendant’s argu-
ments in support of that claim are twofold. First, he
argues that, although the court determined that the
out-of-court identification procedure was unnecessarily
suggestive,6 the court improperly concluded that the
state had proven the reliability of Jackson’s in-court
identification by clear and convincing evidence. Sec-
ond, he argues that the court improperly permitted the
jury to consider Jackson’s out-of-court identification as
evidence of guilt. We disagree.
A
We first address the defendant’s claim that the court
improperly concluded that the state had proven the
reliability of Jackson’s in-court identification by clear
and convincing evidence. Specifically, the defendant
argues that Jackson’s ‘‘brief prior acquaintance’’ with
the defendant and Jackson’s ‘‘denial that the identifica-
tion procedure affected him’’ does not constitute clear
and convincing evidence of reliability.7 In response, the
state contends that, although the trial court improperly
shifted the burden of proving the reliability of Jackson’s
in-court identification onto the state, Jackson was suffi-
ciently familiar with the defendant to minimize the risk
of misidentification, and that this familiarity, consid-
ered under the totality of the circumstances sur-
rounding the crime and subsequent identification,
demonstrates that the trial court’s ruling was not an
abuse of its discretion. Without determining whether
the trial court improperly shifted the burden of proof
onto the state, we conclude that the court did not abuse
its discretion by allowing Jackson to make an in-court
identification of the defendant.
We begin by setting forth the applicable standard of
review and the legal principles that guide our analysis of
a defendant’s constitutional challenge to an eyewitness
identification procedure. ‘‘Our standard of review of a
trial court’s findings and conclusions in connection with
a motion to suppress is well defined. A finding of fact
will not be disturbed unless it is clearly erroneous in
view of the evidence and pleadings in the whole record
. . . . [W]here the legal conclusions of the court are
challenged, we must determine whether they are legally
and logically correct and whether they find support in
the facts set out in the memorandum of decision . . . .
We undertake a more probing factual review when a
constitutional question hangs in the balance.’’ (Internal
quotation marks omitted.) State v. Aviles, 154 Conn.
App. 470, 478–79, 106 A.3d 309 (2014), cert. denied, 316
Conn. 903, 111 A.3d 471 (2015).
‘‘[W]e will reverse the trial court’s ruling [on evi-
dence] only where there is an abuse of discretion or
where an injustice has occurred . . . and we will
indulge in every reasonable presumption in favor of the
trial court’s ruling. . . . Because the inquiry into
whether [identification evidence] 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 subordinate facts unless the record reveals
clear and manifest error.’’ (Internal quotation marks
omitted.) State v. Dakers, 155 Conn. App. 107, 112–13,
112 A.3d 819 (2015); accord State v. Ledbetter, 275 Conn.
534, 548, 881 A.2d 290 (2005), cert. denied, 547 U.S.
1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).
‘‘[B]ecause the issue of the reliability of an identifica-
tion involves the constitutional rights of an accused
. . . [our appellate courts] are obliged to examine the
record scrupulously to determine whether the facts
found are adequately supported by the evidence and
whether the [trial] court’s ultimate inference of reliabil-
ity was reasonable.’’ (Internal quotation marks omit-
ted.) State v. Ledbetter, supra, 275 Conn. 547; see also
State v. Aviles, supra, 154 Conn. App. 479. ‘‘[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.’’ (Internal quotation marks omitted.)
State v. Ledbetter, supra, 547–48; see also Manson v.
Brathwaite, 432 U.S. 98, 110–14, 97 S. Ct. 2243, 53 L.
Ed. 2d 140 (1977).
‘‘[A]n out-of-court eyewitness identification should
be excluded on the basis of the procedure used to elicit
that identification only if the court is convinced that
the procedure was so suggestive and otherwise unrelia-
ble as to give rise to a very substantial likelihood of
irreparable misidentification.’’ (Emphasis omitted.)
State v. Marquez, 291 Conn. 122, 142, 967 A.2d 56, cert.
denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163(2009). ‘‘That the initial identification ha[s] been invali-
d[ated] . . . place[s] the state under a constitutional
restraint to establish an independent basis for the subse-
quent [in-court identification]. Thus, the burden [is] on
the state to establish by clear and convincing evidence
that the subsequent [in-court identification is] based
on the [witness’] independent recollection.’’ State v.
Mitchell, 204 Conn. 187, 204, 527 A.2d 1168, cert. denied,
484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987);
see also State v. Guertin, 190 Conn. 440, 459, 461 A.2d
963 (1983). ‘‘[R]eliability is the linchpin in determining
the admissibility of identification testimony . . . . To
determine whether an identification that resulted from
an unnecessarily suggestive procedure is reliable, the
corruptive effect of the suggestive procedure is weighed
against certain factors, such as the opportunity of the
[witness] to view the criminal at the time of the crime,
the [witness’] degree of attention, the accuracy of [the
witness’] prior description of the criminal, the level of
certainty demonstrated at the [identification] and the
time between the crime and the [identification].’’ (Inter-
nal quotation marks omitted.) State v. Mitchell, 127
Conn. App. 526, 534, 16 A.3d 730, cert. denied, 301 Conn.
929, 23 A.3d 724 (2011); see also Manson v. Brathwaite,
supra, 432 U.S. 114; Neil v. Biggers, 409 U.S. 188, 199–
200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
With the foregoing factual background and legal
framework in mind, we now review the trial court’s
denial of the defendant’s motion to suppress Jackson’s
in-court identification. We begin our analysis by
addressing the court’s factual finding that Jackson was
‘‘personally familiar’’ with the defendant. The defendant
disagrees with this finding and, instead, contends that
he and Jackson were ‘‘near strangers.’’ Specifically, the
defendant argues that ‘‘the state did not cite to any case
in which a twenty minute conversation and three to four
brief encounters over two weeks creates’’ sufficient
familiarity ‘‘to identify him from a brief glimpse . . .
or from seven spoken words.’’ In response, the state
argues that the court’s factual findings were supported
by the record.
At the outset, we note that our Supreme Court has
declined to ‘‘articulate a specific rule regarding the
degree of familiarity that an eyewitness must have with
a suspect . . . .’’ State v. Williams, 317 Conn. 691, 707,
119 A.3d 1194 (2015). ‘‘Rather, the typical approach is
to consider the nature and extent of the eyewitness’
prior knowledge of the suspect, along with all of the
other facts and circumstances of the crime and the
subsequent identification of a perpetrator, to determine
whether a trial court has abused its discretion . . . .
[A]ffording flexibility to trial courts is desirable due to
the myriad and unpredictable ways in which crimes
occur and are witnessed and in which individuals may
have had previous contact with each other. . . . [I]n
a case in which an eyewitness has a limited, stressful
encounter with a criminal actor whose features are
largely concealed, a high level of prior familiarity likely
would be necessary . . . . On the other hand, if a wit-
ness has ample opportunity to view a perpetrator under
conditions conducive to an accurate identification and
identifies him or her shortly thereafter, a lesser degree
of familiarity may suffice.’’ (Citation omitted; footnote
omitted.) Id., 707–708.
The record demonstrates that Jackson had a height-
ened awareness of who was present on Sixth Street,
including the defendant. Jackson had interacted with
the defendant at least four times in the two weeks prior
to the victim’s murder. On the basis of these interac-
tions, Jackson stated that he was able to recognize
the defendant by both his appearance and his voice.
Jackson also was aware of the ongoing dispute between
the defendant and the victim at the time of the shooting.
We therefore conclude that the trial court’s finding that
Jackson was personally familiar with the defendant was
supported by the record.
We next address Jackson’s opportunity to view the
defendant at the time of murder. ‘‘This consideration
implicates factors that relate to the [witness’] condition
at the time as well as the external environment.’’ State
v. Artis, 136 Conn. App. 568, 595, 47 A.3d 419 (2012),
rev’d on other grounds, 314 Conn. 131, 101 A.3d 915(2014). Jackson was an eyewitness to the crime. As
the trial court explained, Jackson ‘‘had a front row
seat to [the victim’s] murder.’’ Jackson even referred
to himself as the ‘‘star witness’’ because he ‘‘[was] the
one closest to the person that got killed.’’ Jackson had
two opportunities to view the defendant in broad day-
light on the morning of the murder; once from the front
passenger seat of the vehicle, and again as he fled from
the crime scene and saw the unmasked defendant.
Jackson’s description of the perpetrator’s appear-
ance, which was given prior to the unduly suggestive
police identification procedure and his identification of
the defendant from a photographic array, was generally
consistent with the defendant’s appearance as captured
by the surveillance video, as described by the 911 caller8
and as testified to by Jackson at trial. The defendant
contends that Jackson’s differing descriptions as to
what type of pants the assailant was wearing suggests
that he altered his original description after viewing
the surveillance video. We disagree that this claimed
discrepancy is significant, as Jackson himself acknowl-
edged that he was not staring at the assailant’s pants
and was not sure what he was wearing. We note that
Jackson, when testifying before the jury, stated for the
first time that the defendant’s face was uncovered and
visible as they ran away from Sixth Street. Although
Jackson’s withholding of this fact until trial was proper
fodder for the jury to consider when assessing his credi-
bility, it does not significantly impact our analysis of
the defendant’s claim on appeal. See State v. Williams,
supra, 317 Conn. 713–14 (fact that witness gave more
complete description of defendant at trial than during
police interview does not compel reversal of trial
court’s ruling).
Finally, the eight day time period between the crime
and Jackson’s interview in which he identified the
defendant is not so long as to render Jackson’s identifi-
cation unreliable.9 See, e.g., State v. Sanchez, 128 Conn.
App. 1, 11, 15 A.3d 1182 (2011) (concluding that sixteen
month period between crime and identification did not
render witness’ identification unreliable), aff’d, 308
Conn. 64, 60 A.3d 271 (2013); State v. Henton, 50 Conn.
App. 521, 535, 720 A.2d 517 (four month period between
crime and identification did not render witness’ identifi-
cation unreliable), cert. denied, 247 Conn. 945, 723 A.2d
322 (1998); State v. McClendon, 45 Conn. App. 658,
666, 697 A.2d 1143 (1997) (two year period between
crime and identification did not render identification
unreliable where victim had ample opportunity to see
defendant, had high degree of attention during encoun-
ter and provided detailed description at time of inci-
dent), aff’d, 248 Conn. 572, 730 A.2d 1107 (1999).
Therefore, after reviewing the record, we conclude that
the court’s denial of the defendant’s motion to suppress
Jackson’s in-court identification was supported by the
record, and not an abuse of its discretion.
Moreover, any alleged evidentiary error as to the in-
court identification was harmless. ‘‘[T]he test for
determining whether a constitutional error is harmless
. . . is whether it appears beyond a reasonable doubt
that the error complained of did not contribute to the
verdict obtained.’’ (Internal quotation marks omitted.)
Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827,
144 L. Ed. 2d 35 (1999); see also State v. Cook, 287
Conn. 237, 252, 947 A.2d 307, cert. denied, 555 U.S. 970,
129 S. Ct. 464, 172 L. Ed. 2d 328 (2008). ‘‘[W]hether an
error is harmful depends on its impact on the trier of
fact and the result of the case. . . . This court has held
in a number of cases that when there is independent
overwhelming evidence of guilt, a constitutional error
would be rendered harmless beyond a reasonable
doubt. . . . If the evidence may have had a tendency
to influence the judgment of the jury, it cannot be con-
sidered harmless. . . . That determination must be
made in light of the entire record [including the strength
of the state’s case without the evidence admitted in
error].’’ (Internal quotation marks omitted.) State v.
Aviles, supra, 154 Conn. App. 478.
In this case, the jury heard motive evidence in the
form of testimony about the dispute and ensuing physi-
cal altercations that occurred in the two days prior to
the murder. The jury viewed the timestamped video
surveillance of the defendant walking toward Sixth
Street and then fleeing after the shooting, which the trial
court described as ‘‘very incriminating.’’ See footnote
2 of this opinion. At trial, the defendant conceded that
he was the person on the surveillance footage. The jury
also heard a recording of a phone call the defendant
made to his girlfriend from his holding cell, in which
he asked her if the police had ‘‘[found] anything in [her]
house.’’ Additionally, the defendant elicited evidence
of Jackson’s out-of-court identification of the defen-
dant. See part 1 B of this opinion. We therefore con-
clude, on the basis of the strength of the state’s evidence
against the defendant, that any alleged error had very
little, if any, likelihood of affecting the jury’s verdict.
B
We next turn to the defendant’s claim that the court
‘‘should have granted [the defendant’s] request to
charge and charged the jury that the out-of-court identi-
fication procedure was not substantive evidence of guilt
because of its suggestiveness.’’ The defendant contends
that his claim was preserved by his September 29, 2014
request to charge. In response, the state argues that the
defendant is not entitled to review of this claim because
(1) it was not preserved by the defendant’s request to
charge, and (2) the defendant has either induced these
errors or waived them pursuant to State v. Kitchens,
299 Conn. 447, 10 A.3d 942 (2011).10 We conclude that
the defendant’s claim was not preserved by his request
to charge or exceptions taken at trial and, accordingly,
we do not reach its merits.
The following additional facts and procedural history
are necessary for the resolution of this claim. During
the cross-examination of Winkler, defense counsel
introduced portions of Jackson’s out-of-court identifi-
cation ‘‘in order to show that Jackson mistakenly identi-
fied [the defendant] because of the unnecessarily
suggestive procedure.’’ The state objected to its admis-
sion. The court sustained the state’s objection, but
noted that the defendant ‘‘[had opened] the door to the
state possibly using other portions [of the out-of-court
identification] to rehabilitate the identification that
[Jackson] made of the defendant because the [out-of-
court identification] that the court had previously
ordered stricken because it was suggestive has been
introduced into this case by the defense. . . . [T]he
state [is] free to inquire to show that [Jackson] did
in fact make that identification.’’ (Emphasis added.)
Defense counsel then requested a limiting instruction
that the comments of the interviewing detectives should
not be taken for their truth; however, defense counsel
did not request a limiting instruction as to Jackson’s
statement. The court then instructed the jury as follows:
‘‘The . . . evidence is being offered for the statements
of [Jackson]. . . . [Y]ou’ll hear certain expressions of
opinion by the police officers and those are not being
offered for the truth of their opinions . . . but to show
their effect on [Jackson] or his responses to those state-
ments.’’ Jackson’s videotaped interview was then admit-
ted into evidence as a full exhibit and viewed by the jury.
On September 29, 2014, the defendant submitted a
draft request to charge that stated in relevant part: ‘‘In
this case, the identification of the defendant by the
witness, [Jackson], was the result of suggestive identifi-
cation procedures.’’ On October 3, 2014, the court pro-
vided defense counsel and the state with a draft of
its proposed jury instructions. That same morning, the
court, defense counsel and the prosecutor then
reviewed the proposed jury instructions page by page.
The court indicated that it had incorporated language
from the Connecticut criminal jury instructions into
the section regarding ‘‘identification of the defendant.’’
Defense counsel objected, and referred the court to the
defendant’s September 29, 2014 request to charge the
jury with the following language: ‘‘In this case, the iden-
tification of the defendant by the witness, [Jackson],
was the result of suggestive identification procedures.’’
The court denied that request, stating: ‘‘The court’s
problem with the [defendant’s] request is the jury may
well make that determination. . . . I’m not preventing
you from arguing it. I anticipate you arguing it . . . .
But I can’t make that leap and make a finding of sugges-
tiveness. I found that while there was a taint to the
out-of-court identification, I was satisfied based upon
[Jackson’s] statements and his prior familiarity with
the defendant before the homicide, that his in-court
identification was not the result of any suggestive out-
of-court identification procedure. . . . I’m not going to
charge this jury that the identification was suggestive.
That may be something that [the jurors] make a [deter-
mination] as to which might create reasonable doubt.
But I can’t tell [the jury] that as a matter of law in
this instruction because I believe it is marshaling the
evidence in a way that’s not appropriate in a charge
which is supposed to be . . . right down the middle.’’
It is well settled that ‘‘[a]n appellate court shall not
be bound to consider error as to the giving of, or the
failure to give, an instruction unless the matter is cov-
ered by a written request to charge or exception has
been taken by the party appealing immediately after
the charge is delivered. Counsel taking the exception
shall state distinctly the matter objected to and the
ground of objection.’’ Practice Book § 16-20; accord
Practice Book § 42-16. ‘‘Thus, a party may preserve for
appeal a claim that an instruction, which was proper
to give, was nonetheless defective either by: (1) submit-
ting a written request to charge covering the matter; or
(2) taking an exception to the charge as given. . . .
Moreover, the submission of a request to charge cov-
ering the matter at issue preserves a claim that the trial
court improperly failed to give an instruction on that
matter.’’ (Internal quotation marks omitted.) State v.
Johnson, 165 Conn. App. 255, 284, 138 A.3d 1108, cert.
denied, 322 Conn. 904, 138 A.3d 933 (2016). ‘‘In each
of these instances, the trial court has been put on notice
and afforded a timely opportunity to remedy the error.
. . . It does not follow, however, that a request to
charge addressed to the subject matter generally, but
which omits an instruction on a specific component,
preserves a claim that the trial court’s instruction
regarding that component was defective.’’ (Emphasis
omitted; internal quotation marks omitted.) State v.
Silva, 113 Conn. App. 488, 495, 966 A.2d 798 (2009).
‘‘[T]he sina qua non of preservation is fair notice to the
trial court. . . . An appellate court’s determination of
whether a claim has been properly preserved will
depend on a careful review of the record to ascertain
whether the claim on appeal was articulated [in the
trial court] with sufficient clarity to place the trial court
on reasonable notice of that very same claim.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Sease, 147 Conn. App. 805, 814, 83 A.3d 1206, cert.
denied, 311 Conn. 932, 87 A.3d 581 (2014).
We have reviewed the record in its entirety and find
that at no time did the defendant put the trial court on
notice of the alleged error now claimed on appeal. The
record demonstrates that the defendant’s request to
charge did not include the specific language that ‘‘the
out-of-court identification procedure was not substan-
tive evidence of guilt because of its suggestiveness.’’
Although defense counsel objected to the court’s pro-
posed jury charge regarding the ‘‘identification of the
defendant,’’ he merely referred the court to the language
in the defendant’s request to charge, which did not
address whether the jury should be permitted to use
the out-of-court identification as substantive evidence
of the defendant’s guilt. ‘‘To permit [the defendant] to
raise a different ground on appeal than [that] raised
during trial would amount to trial by ambuscade, unfair
both to the trial court and to the [state]. . . . Inasmuch
as the defendant raises a claim on appeal different from
the one that he raised at trial, he is not entitled to review
of his claim.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) State v. Saunders,
114 Conn. App. 493, 504, 969 A.2d 868, cert. denied, 292
Conn. 917, 973 A.2d 1277 (2009). We therefore conclude
that the defendant’s claim has not been preserved for
our review.
II
The defendant’s final claim is that the trial court
abused its discretion in denying his request for a special
credibility instruction with respect to Jackson’s testi-
mony. The defendant contends that a special credibility
instruction was required because Jackson was either
an accomplice or a jailhouse informant. We disagree.
The following additional facts and procedural history
are necessary to our resolution of this claim. On Sep-
tember 29, 2014, the defendant submitted a request to
charge, stating in relevant part: ‘‘A witness who testified
in this case, [Jackson], is currently incarcerated and is
awaiting trial for some crimes other than the crime
involved in this case. At the time this witness first pro-
vided information to the police, he was also incarcer-
ated and awaiting trial for some crimes other than the
crime involved in this case. You should look with partic-
ular care at the testimony of this witness and scrutinize
it very carefully before you accept it. You should con-
sider the credibility of this witness in the light of any
motive for testifying falsely and inculpating the
accused.’’
On October 3, 2014, the court denied the defendant’s
request to provide a special credibility instruction to
the jury regarding Jackson, stating: ‘‘I . . . think that
this is a case that’s so completely removed from infor-
mant . . . if you believe this witness, he’s sitting right
next to someone who’s shot dead multiple times at very
close range. He is as close an eyewitness as I’ve ever
seen in any murder. Whether he’s reliable and whether
his identification is solid, that’s a question for [the jury].
But this man had a front row seat to this whole thing,
if you believe him. And so I don’t find him to be an
informant in that sense. He’s an eyewitness with bag-
gage, [which] is perhaps a better characterization of
him, and whether that baggage is sufficient to sink his
credibility [is] a question for the jury. . . . I’m not going
to give the [requested] informant instruction for
those reasons.’’
We turn to the legal principles that guide our review
of the defendant’s claim. ‘‘It is a well established princi-
ple that a defendant is entitled to have the jury correctly
and adequately instructed on the pertinent principles
of substantive law. . . . The primary purpose of the
charge to the jury is to assist [it] in applying the law
correctly to the facts which [it] find[s] to be estab-
lished.’’ (Citations omitted; internal quotation marks
omitted.) State v. Ortiz, 252 Conn. 533, 560–61, 747 A.2d
487 (2000). ‘‘[T]he test of a court’s charge is not whether
it is as accurate upon legal principles as the opinions
of a court of last resort but whether it fairly presents
the case to the jury in such a way that injustice is not
done to either party under the established rules of law.
. . . As long as [the instructions] are correct in law,
adapted to the issues and sufficient for the guidance
of the jury . . . we will not view the instructions as
improper.’’ (Internal quotation marks omitted.) State v.
Bialowas, 178 Conn. App. 179, 187–88, 174 A.3d 853(2017).
‘‘Generally, a [criminal] defendant is not entitled to
an instruction singling out any of the state’s witnesses
and highlighting his or her possible motive for testifying
falsely.’’ State v. Ortiz, supra, 252 Conn. 561; accord
State v. Colon, 272 Conn. 106, 227, 864 A.2d 666 (2004),
cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d
116 (2005). Our Supreme Court has recognized three
exceptions to this general rule, including the accom-
plice exception and the jailhouse informant exception.
See State v. Diaz, 302 Conn. 93, 101–102, 25 A.3d 594(2011). Neither the accomplice nor the jailhouse infor-
mant exception is applicable in this case.
A
The defendant claims that the court was required to
provide an accomplice credibility instruction to the jury
regarding Jackson’s testimony. Specifically, the defen-
dant contends that the jury could have concluded that
Jackson was involved in the shooting due to his pres-
ence and subsequent flight from the crime scene; and
because he displayed concern over being suspected as
the culprit.
‘‘[When] it is warranted by the evidence, it is the
court’s duty to caution the jury to scrutinize carefully
the testimony if the jury finds that the witness intention-
ally assisted in the commission, or if [he] assisted or
aided or abetted in the commission, of the offense with
which the defendant is charged. . . . [I]n order for one
to be an accomplice there must be mutuality of intent
and community of unlawful purpose.’’ (Internal quota-
tion marks omitted.) State v. Jamison, 320 Conn. 589,
597–98, 134 A.3d 560 (2016); see also State v. Gentile,
75 Conn. App. 839, 855, 818 A.2d 88 (‘‘[t]he court’s duty
to so charge is implicated only where the trial court
has before it sufficient evidence to make a determina-
tion that there is evidence that the witness was in fact an
accomplice’’ [internal quotation marks omitted]), cert.
denied, 263 Conn. 926, 823 A.2d 1218 (2003).
In the present case, there was no basis in the record
for the jury to reasonably conclude that Jackson was
involved in the murder of the victim. The jury could
have reasonably found the following additional facts.
Jackson and the victim had known each other for eight
or nine years. Jackson was very close friends with the
victim and described him as a ‘‘big brother.’’ On the
morning of the murder, they talked about ‘‘getting out
of the hood’’ and had planned on driving to New Haven
to fill out applications at Gateway Community College.
Jackson pleaded with the defendant to stop shooting
at the victim. The evidence adduced at trial simply did
not warrant an accomplice instruction. We therefore
conclude that the court did not abuse its discretion in
denying the defendant’s request for an accomplice
instruction.
B
The defendant also claims that the court was required
to provide a special credibility instruction to the jury
regarding Jackson’s testimony because he was ‘‘akin to
a jailhouse informant.’’ The defendant contends that
this exception is applicable because Jackson attempted
to negotiate the detectives’ assistance prior to identi-
fying the defendant.
Our Supreme Court adopted the jailhouse informant
exception in State v. Patterson, 276 Conn. 452, 886 A.2d
777 (2005), holding that a special credibility instruction
is required in situations where a prison inmate ‘‘has
been promised a benefit by the state in return for his
or her testimony’’ regarding incriminating statements
made by a fellow inmate. Id., 469; see also State v. Diaz,
supra, 302 Conn. 102 (‘‘a jailhouse informant is a prison
inmate who has testified about confessions or inculpa-
tory statements made to him by a fellow inmate’’). In
Diaz, our Supreme Court declined to interpret its deci-
sion in Patterson as ‘‘[requiring] a special credibility
instruction when an incarcerated witness has testified
concerning events surrounding the crime that [he] wit-
nessed outside of prison’’; State v. Diaz, supra, 102;
reasoning that such an exception ‘‘would swallow the
rule that the trial court generally is not required to give
such an instruction for the state’s witnesses.’’ Id., 110.
Instead, when the ‘‘jury [is] aware of the [nonjailhouse
informant] witness’ involvement in the criminal justice
system and their expectations that they would receive
consideration in exchange for their testimony,’’ a gen-
eral credibility instruction is sufficient. Id., 103.
Jackson testified at trial regarding events that he
personally witnessed from his ‘‘front row seat.’’ There-
fore, the defendant’s claim is controlled by Diaz and
fails accordingly. See State v. Jackson, 159 Conn. App.
670, 673–75, 123 A.3d 1244 (2015) (jailhouse informant
instruction inapplicable where ‘‘incarcerated witness
receive[d] a benefit from the state in exchange for testi-
mony regarding a crime [he claimed to have] personally
observed prior to his incarceration’’), cert. granted on
other grounds, 325 Conn. 917, 163 A.3d 617 (2017); State
v. Carattini, 142 Conn. App. 516, 523–24, 73 A.3d 733(jailhouse informant instruction inapplicable where
witness testified regarding ‘‘observations and recollec-
tions of the events surrounding the murder’’), cert.
denied, 309 Conn. 912, 69 A.3d 308 (2013). Moreover, the
court, in its charge to the jury, gave a general credibility
instruction regarding the testimony of witnesses. In that
instruction, the jury was told to consider if ‘‘the witness
[had] an interest in the outcome of the case, or any
bias or prejudice concerning any party or any matter
involved in this case’’ and to ‘‘evaluate the testimony
of all witnesses by [the jury’s] own knowledge of human
nature and of the motives that influence and control
human actions.’’ See State v. Ebron, 292 Conn. 656, 675,
975 A.2d 17 (2009), overruled on other grounds by State
v. Kitchens, supra, 299 Conn. 472–73; State v. Carattini,
supra, 525–27. We therefore conclude that the court
did not abuse its discretion in denying the defendant’s
request for a jailhouse informant instruction.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant is also known by his street name, ‘‘Sleep’’ or ‘‘Sleepy.’’
2
On the day of the murder, Detective Robert Winkler reviewed surveil-
lance footage from cameras posted by the Bridgeport Police Department
at three intersections along Stratford Avenue. The defendant emerged from
an apartment at the intersection of Stratford and Hollister Avenues at approx-
imately 7 a.m. The defendant walked west on Stratford Avenue, in the
direction of Sixth Street, while using his cell phone. The defendant had
something white draped over his shoulder and his dominant right hand was
positioned in a way that suggested he was carrying a concealed weapon.
At 7:22 a.m., minutes prior to the shooting, the camera posted at the intersec-
tion of Stratford and Newfield Avenues captured the defendant at the corner
of Stratford and Bunnell walking in the direction of Sixth Street. The shooting
was not captured on video as there was no camera focused on that area of
Sixth Street. At 7:27 a.m., the defendant emerged from the empty lot on the
corner of Bunnell and Stratford without the white item. The defendant
continued eastbound on Stratford Avenue, at times running, repeatedly
looking back in the direction of Sixth Street.
3
In the defendant’s arrest warrant, Detective Robert Winkler stated that
an anonymous witness was shown the surveillance video and ‘‘immediately
. . . identified ‘Sleepy’ as the individual.’’
4
Winkler testified that prior to the interview, he knew that Jackson was
the victim’s friend and was sitting in the passenger seat of the victim’s car
at the time of the homicide. He further testified that he ‘‘was quite confident
that [Jackson] was familiar with the [defendant], just reluctant to give [him]
specific details.’’
5
The defendant also asks this court to consider whether his state constitu-
tional rights provide him greater protection. We decline to review the defen-
dant’s state constitutional claim because it is inadequately briefed. The
defendant allots two paragraphs of his brief to this claim, which provides
no substantive analysis in support of his claim. This court is ‘‘not required
to review issues that have been improperly presented . . . through an inade-
quate 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.) Connecticut Light & Power Co. v. Dept. of Public Utility
Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). Because the defendant’s
state constitutional claim is inadequately briefed, we decline to address it.
6
On appeal, the state has not challenged the trial court’s finding with
respect to the suggestiveness of the out-of-court identification.
7
The defendant also asks this court to extend our Supreme Court’s holding
in State v. Dickson, 322 Conn. 410, 141 A.3d 810 (2016), cert. denied,
U.S. , 137 S. Ct. 2263, 198 L. Ed. 2d 713 (2017), to disallow in-court
identifications in situations ‘‘when the out-of-court identification procedure
is unnecessarily suggestive and either suppressed or the prosecution
declines to offer it as evidence, and there is a factual dispute about the
witness’ ability to identify the defendant.’’ The state contends that ‘‘Dickson
itself . . . rejects such an extension.’’ We agree with the state. In effect,
the defendant asks us to overrule Supreme Court precedent. However, ‘‘[i]t
is not within our function as an intermediate appellate court to overrule
Supreme Court authority.’’ (Internal quotation marks omitted.) State v.
Holmes, 59 Conn. App. 484, 487–88, 757 A.2d 639 (2000), aff’d, 257 Conn.
248, 777 A.2d 627 (2001), cert. denied, 535 U.S. 939, 122 S. Ct. 1321, 152 L.
Ed. 2d 229 (2002). In Dickson, our Supreme Court narrowly held that ‘‘in
cases in which identity is an issue, in-court identifications that are not
preceded by a successful identification in a nonsuggestive identification
procedure implicate due process principles and, therefore, must be pre-
screened by the trial court.’’ (Footnote omitted.) State v. Dickson, supra,
415. The Dickson court recognized that ‘‘[a] different standard applies when
the defendant contends that an in-court identification followed an unduly
suggestive pretrial identification procedure that was conducted by a state
actor. In such cases, both the initial identification and the in-court identifica-
tion may be excluded if the improper procedure created a substantial likeli-
hood of misidentification.’’ (Emphasis added.) Id., 420; see also id., 447 n.31.
That ‘‘different standard’’ is applicable here and, therefore, is the standard
that we will apply in analyzing the defendant’s claim.
8
The caller described the gunman as being ‘‘very tall,’’ wearing all black
and having a black and white bandana covering his face.
9
Additionally, although Jackson did not come forward with information
voluntarily, the court properly viewed these facts under the totality of the
circumstances, given the unwillingness of neighborhood residents to provide
information or testimony for fear of being labeled as a ‘‘snitch.’’ The court
itself noted that ‘‘[it understood] how difficult it is to get people to testify
in inner city homicides.’’ Jackson testified that being known on the street
as a snitch was not a good reputation to have. The court also heard testimony
from the 911 caller that his aunt told him to ‘‘shut up’’ in Spanish while he
was speaking to the 911 operator, and that she was not supportive of his
speaking to police. Bridgeport Police Officer Ilidio Pereira, the initial officer
to arrive on scene, testified that he was not ‘‘successful in locating anyone
who [wanted to provide] information about a suspect’’ and that ‘‘it didn’t
look like anyone wanted to talk to [him] because they quickly walked away.’’
This was not uncommon in Pereira’s experience as an officer, because people
‘‘don’t want to be known as a . . . [snitch], someone that’s cooperating
with law enforcement to . . . apprehend the suspect of a crime.’’
10
The defendant has not requested review as to this claim under State v.
Golding, 213 Conn. 233, 567 A.2d 823 (1989), as modified by In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). Accordingly, we need not
determine if these claims have been waived pursuant to State v. Kitchens,
supra, 299 Conn. 447. See State v. Hall-Davis, 177 Conn. App. 211, 240, 172
A.3d 222 (2017) (‘‘[i]t is well established in Connecticut that unpreserved
claims of improper jury instructions are reviewable under Golding unless
they have been induced or implicitly waived’’ [internal quotation marks
omitted]).