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State v. Patterson

Court of Appeals of Connecticut

February 21, 2017

STATE OF CONNECTICUT
v.
CLARENCE MALCOLM PATTERSON

          Argued November 28, 2016.

         Appeal from Superior Court, judicial district of Stamford-Norwalk, geographical area number one, Colin, J.

          Heather Clark, assigned counsel, for the appellant (defendant).

          Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Jonathan Lewin, deputy assistant state's attorney, for the appellee (state).

          Lavine, Alvord and Harper, Js.

          OPINION

          LAVINE J.

         The defendant, Clarence Malcolm Patterson, appeals from the judgment of conviction, rendered after a jury trial, of one count of burglary in the second degree in violation of General Statutes § 53a-102 and one count of attempted larceny in the fifth degree in violation of General Statutes §§ 53a-49 and 53a-125a. On appeal, the defendant claims that (1) the trial court erroneously denied his motion to suppress two photographic lineup identifications and one private actor identification, (2) the state improperly cross-examined his expert witness when it questioned him about the opinions of other experts and about a hypothetical question that included facts not in evidence, and (3) the prosecutor engaged in multiple acts of prosecutorial impropriety. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. At approximately noon on May 2, 2013, Lester Segura was in his bedroom with his girlfriend, Angie Espitia, when he heard someone enter his residence. Segura hid behind his bedroom door and peered around it to see the defendant standing in his residence. From his room, Segura asked the defendant why he was there and asked him several times to leave. The defendant responded that he knocked on the front door and noticed that it was open, so he ‘‘just came in.'' During this exchange, Segura looked around the door three times. He observed the defendant for a total of fifteen to twenty seconds but saw the defendant's ‘‘full face'' for approximately three to four seconds.

         When the defendant exited the residence through the front door, Segura went outside and observed the defendant ‘‘walking fast'' down the street toward a liquor and dress store. Gabriel Duarte, an employee of the store, was sweeping the sidewalk when he observed the defendant exit Segura's residence. Duarte was ‘‘face-to-face'' with the defendant for approximately five seconds.

         Segura went back inside his residence and noticed that his computer, iPad, and tools were on the couch where he had not left them. He then went into his brother's room and saw that somebody had moved his brother's coin jar. Espitia called 911, but before the police arrived, Segura realized that he recognized the defendant from ‘‘[i]n the store, [and] out on the street.'' He also thought that he had seen the defendant previously on the local news. He quickly checked News Channel 12 from his cell phone and found the defendant's photograph, which was displayed in relation to another burglary that took place approximately two weeks prior.

         On May 8, 2013, Segura identified the defendant in a double-blind, [1] sequential[2] photographic lineup[3] as the man he saw in his residence. One and one-half weeks before trial, Duarte identified the defendant in a different double-blind, sequential photographic lineup as the man he saw leaving Segura's residence. Duarte told police that he had seen the defendant prior to May 2, 2013, walking around the neighborhood. He also stated that the defendant previously had shopped at Duarte's store and that Duarte had once purchased a toy bubble gun from the defendant.[4]

         The defendant was charged with burglary in the second degree and attempted larceny in the fifth degree. On July 14, 2014, the defendant filed a motion to suppress any identifications of him by Segura and Duarte. On August 18, 2014, the court conducted an evidentiary hearing, and on August 19, 2014, the court denied the defendant's motion.

         During the defendant's case-in-chief, he called Samuel R. Sommers, an associate professor at Tufts University, to testify about the unreliability of eyewitness identifications. The state cross-examined Sommers about other experts' opinions pertaining to the reliability of these studies. The state also posed a hypothetical question to Sommers. Defense counsel did not object to either line of questioning.

         During his closing and rebuttal arguments, the prosecutor stated that Sommers' testimony actually supported the state's theory that Segura and Duarte made accurate identifications of the defendant, reiterating the hypothetical he posed to Sommers. In addition, without tying his assertion to any evidence admitted at trial, the prosecutor opined that the defendant planned on selling Segura's property to a pawn shop.

         On August 22, 2014, the jury found the defendant guilty on both counts. The court sentenced the defendant to ten years incarceration for the burglary in the second degree conviction and six months for the attempted larceny in the fifth degree conviction, for a total effective sentence of ten and one-half years. This appeal followed. Additional facts will be set forth as necessary.

         I

         IDENTIFICATIONS

         The defendant's first claim is that the court erroneously denied the defendant's motion to suppress the identifications of him by Segura and Duarte. Specifically, the defendant claims that the photographs viewed by Segura and Duarte were unduly suggestive and that the process[5] by which police showed Duarte the photographs was unduly suggestive.[6] The defendant also claims that Segura's private actor identification, when he identified the defendant from the news article, was the product of Segura's unduly suggestive conduct.[7] The state claims that the police actions were not unduly suggestive because the police conducted double-blind, sequential lineups, and the photographs were not unduly suggestive because the defendant's photograph ‘‘was not highlighted in comparison to the other photographs.'' The state also claims that ‘‘Segura's use of his cell phone to access an online . . . picture did not constitute an unnecessarily suggestive method of identification.'' We agree with the state and conclude that no part of the identification was the product of unnecessarily suggestive conduct and, therefore, do not reach the question of whether the identifications were otherwise unreliable.

         The following additional facts, which are either in the record or which the court found in ruling on the motion to suppress, are relevant to this claim. During the 911 phone call made by Espitia, Segura described the defendant as a ‘‘bald [and] black'' man. Shortly after, Daniel Musso, an officer of the Stamford Police Department (department), responded to the 911 call made by Espitia. When he arrived at Segura's residence, Segura described the defendant as a ‘‘black bald man'' between the ages of forty and fifty years old. He also told Musso that he had seen the defendant prior to the incident and showed Musso the photograph of the defendant he found from the news. Musso did not ask Segura to locate the photograph and did not see the photograph until after he started his investigation.

         Peter Dispagna, a sergeant with the department, created two different photographic lineups, both of which included a photograph of the defendant.[8] In the photographic lineup shown to Segura, the defendant was the oldest person depicted in the photographs.[9] The defendant's height fell within the range of the other individuals' heights, and the defendant and three other individuals were bald while the rest of the individuals had hair of varying lengths.[10] The seven other individuals wore black and white shirts while the defendant wore an orange shirt. In the photographic lineup shown to Duarte, the defendant was not the oldest person depicted but was the only person who was bald.[11]

         On May 8, 2013, William Moore, an investigator with the department, conducted a double-blind, sequential photographic lineup with Segura. He read Segura the instructions on the witness instruction sheet before he conducted the photographic lineup, which included instructions that ‘‘[t]he perpetrator may or may not be among the persons in the photographic line up, '' and ‘‘[t]he persons in the photographic lineup . . . may not look exactly as they did on the date of the offense because features like facial or head hair can change.'' Segura looked at all of the photographs as Moore turned them over one by one, and he immediately identified the defendant.

         Approximately one and one-half weeks before the trial, Damien Rosa, an officer with the department, conducted a double-blind, sequential photographic lineup with Duarte. Rosa read the same instructions to Duarte as were read to Segura in English and in Spanish. After observing all of the photographs, Duarte immediately identified the defendant. Dispagna remained in the room while Rosa conducted the photographic lineup but did not assist Rosa in conducting the lineup or ‘‘say a word throughout the entire process.''

         Prior to trial, the defendant filed a motion to suppress any identifications of him by Segura and Duarte, including the photographic lineup identifications and Segura's private actor identification of the defendant from the news article. On August 18, 2014, the court held an evidentiary hearing on the motion to suppress, in which a number of witnesses, including Musso and Duarte, testified. On August 19, 2014, the court rendered an oral decision, denying the defendant's motion to suppress. It found that neither the photographs themselves nor the procedures used by police to obtain the identifications were ‘‘unnecessarily suggestive.''[12] It also found Segura's ‘‘conduct [not] to be unnecessarily suggestive.''[13]

         A

         Photographic Lineup Identifications

         The defendant claims on appeal that the court erroneously denied his motion to suppress the photographic lineup identifications by Segura and Duarte. With regard to Segura's photograph lineup identification, the defendant argues that the photographs in the lineup were unnecessarily suggestive because only one individual in the photographs ‘‘was close in age to the defendant.'' In addition, ‘‘[m]any of the individuals in the photographs . . . were significantly shorter than the defendant and had hair, '' and ‘‘the defendant was the only individual wearing a colored shirt.'' With regard to Duarte's identification, the defendant argues that the photographs used in the procedure were unnecessarily suggestive because of the ‘‘lack of likeness shared by the individuals pictured and the prominence of the defendant's photograph.'' He also argues that the conduct of police was unnecessarily suggestive because Dispagna, who was ‘‘someone who knew the defendant, '' was present during the procedure. We disagree.

         ‘‘Upon review of a trial court's denial of a motion to suppress, [t]he court's conclusions will not be disturbed unless they are legally and logically inconsistent with the facts. . . . Because 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 supported by the evidence and whether the court's ultimate inference of reliability was reasonable.'' (Internal quotation marks omitted.) State v. Elliston, 86 Conn.App. 479, 482-83, 861 A.2d 563 (2004), cert. denied, 273 Conn. 906, 868 A.2d 746 (2005).

         ‘‘[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 examination of the totality of the circumstances. . . . Therefore, [t]he critical question . . . is what makes a particular identification procedure suggestive enough to require the court to proceed to the second prong and to consider the overall reliability of the identification. . . . In deciding [the first prong] . . . the entire procedure, viewed in light of the factual circumstances of the individual case . . . must be examined to determine if a particular identification is tainted by unnecessary suggestiveness.'' (Citation omitted; internal quotation marks omitted.) State v. Grant, 154 Conn.App. 293, 303, 112 A.3d 175 (2014), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015). An ‘‘analysis of unnecessary suggestiveness must be conducted in light of the totality of the circumstances . . . .'' (Internal quotation marks omitted.) State v. Manson, 118 Conn.App. 538, 545, 984 A.2d 1099 (2009), cert. denied, 295 Conn. 902, 988 A.2d 878 (2010).

         With regard to the first prong, ‘‘the court should focus on two factors. The first factor concerns the composition of the photographic array itself.'' (Internal quotation marks omitted.) State v. Outing, 298 Conn. 34, 49, 3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131 S.Ct. 1479, 179 L.Ed.2d 316 (2011). ‘‘To determine whether a photographic array is unnecessarily suggestive, a reviewing court considers various factors, including, but not limited to: (1) the degree of likeness shared by the individuals pictured . . . (2) the number of photographs included in the array . . . (3) whether the suspect'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.'' (Internal quotation marks omitted.) State v. Smith, 107 Conn.App. 666, 673-74, 946 A.2d 319, cert. denied, 288 Conn. 902, 952 A.2d 811 (2008).

         ‘‘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 considering 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 officers administering a photographic identification procedure 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 officer. . . . The failure of a police officer to provide an affirmative warning to witnesses that the perpetrator may or may not be among the choices in the identification procedure is one circumstance that may increase the likelihood of a mistaken identification.'' (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Outing, supra, 298 Conn. 49.

         We conclude that, under the totality of the circumstances, the compositions of the photographic lineups were not unnecessarily suggestive. After a review of the record, we agree with the court's finding that ‘‘there was nothing improper about the degree of likeness shared by the individuals pictured in each photo array.'' The differences in hair styles between the individuals are slight; for example, there is little variation between being ‘‘bald'' and a having ‘‘flat top'' hairstyle. There is nothing in the photographs that indicate that there are height differences between the individuals because the photographs only show the individuals' heads and shoulders, and there are no visible height indicators. The differences in age are not dispositive because the analysis focuses on the ‘‘likeness'' of the individuals, and most of the individuals look similar in age to the defendant. The only difference that arguably could differentiate the defendant's photograph from the others is that he is the only one wearing a colored shirt. Yet, there is nothing in the record to indicate that the orange shirt influenced Segura's decision in choosing the defendant's photograph. See, e.g., State v. Smith, supra, 107 Conn.App. 671 (distinction that defendant was only individual wearing a red shirt did not make photographic array unnecessarily suggestive); see also State v. Vaughn, 199 Conn. 557, 564, 508 A.2d 430 (‘‘[a]ny array composed of different individuals must necessarily contain certain differences''), cert. denied, 479 U.S. 989, 107 S.Ct. 583, 93 L.Ed.2d 585 (1986). Even though Segura identified the defendant from the news article prior to the photographic lineup, the defendant provided no evidence that either Segura or Duarte knew that the defendant's photograph was included in the photographic array.

         We also conclude that the photographic lineup procedures in the present case were not unnecessarily suggestive. The police did nothing to bring Segura's or Duarte's unwarranted attention to the defendant's photograph.[14] The defendant failed to produce any evidence that either Moore or Rosa influenced Segura's or Duarte's selection of the defendant's photograph. In fact, neither Moore nor Rosa were aware of who the target was or whether the defendant was included within the photographic lineup. In addition, the witness instruction sheet was read to both Segura and Duarte, and the instructions gave an affirmative warning that the suspect's photograph may or may not be part of the photographic lineup. Specifically with regard to Duarte's photographic lineup procedure, Dispagna was not near either Rosa or Duarte during the procedure and did not speak to Duarte until after the completion of the photographic lineup. In short, both photographic lineup procedures were conducted in a nonsuggestive manner.

         Accordingly, we conclude that the identifications were not products of unnecessarily suggestive actions on the part of the police.

         B

         Private Actor Identification

         The defendant also argues on appeal that the court erroneously denied his motion to suppress the private actor identification by Segura. The defendant asserts that prior to May 2, 2013, ‘‘Segura read a news article related to a burglary [and] the defendant's picture was displayed in that article next to a female, but no other males.'' Not until after Segura observed the defendant in his residence did he ‘‘conduct . . . Internet research to relocate that news article'' in order to identify the defendant to the police. Thus, the defendant argues that because Segura already had seen the defendant in an incriminating news article prior to the incident, Segura's conduct of searching for the defendant's incriminating photograph in order to make an identification was unnecessarily suggestive. We disagree.

         ‘‘Because the [fourteenth] [a]mendment is directed at the states, it can be violated only by conduct that may be fairly characterized as state action.'' (Internal quotation marks omitted.) State v.Holliman, 214 Conn. 38, 43, 570 A.2d 680 (1990). Accordingly, ‘‘the [d]ue [p]rocess [c]lause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.'' Perry v.New Hampshire, ___ U.S. ___, 132 S.Ct. 716, 730, 181 L.Ed.2d 694 (2012); see also State v.Holliman, supra, 46-49 (federal constitutional provisions are not implicated when defendant alleges identification product of unnecessarily suggestive private conduct). Our Supreme Court recently has held that no state constitutional provisions are automatically implicated when a defendant makes a claim of unnecessarily suggestive private conduct. See State v.Johnson, 312 Conn. 687, 704-705, 94 A.3d 1173 (2014). Our Supreme Court, nevertheless, believes that even though a claim of unnecessary private conduct has no constitutional underpinning, ‘‘as a matter of evidentiary law, the criteria established for determining the admissibility of identifications in the due process context are appropriate guidelines by which to determine the admissibility of identifications that result from procedures conducted by civilians.'' (Emphasis in original; internal quotation marks omitted.) Id., 700. Therefore, ...


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