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State v. Torres

Court of Appeals of Connecticut

August 1, 2017

STATE OF CONNECTICUT
v.
QUAVON TORRES

          Argued February 15, 2017

          Jennifer B. Smith, for the appellant (defendant).

          Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Patrick Griffin, state's attorney, Gary Nicholson, supervisory assistant state's attorney, and Michael Dearington, former state's attorney, for the appellee (state).

          Lavine, Keller and Bishop, Js.

         Syllabus

         Convicted of the crimes of murder and carrying a pistol without a permit, the defendant appealed. The defendant's conviction stemmed from his alleged conduct in shooting the victim while near a drive-through at a fast food restaurant. On appeal, he claimed that the first time in-court identification of him as the shooter by an eyewitness, J, violated his right to due process and should have been excluded pursuant to State v. Dickson (322 Conn. 410), which was decided during the pendency of this appeal. In Dickson, our Supreme Court held that in cases in which identity is an issue, a first time in-court identification by a witness who would have been unable to make are liable identification of the defendant in a nonsuggestive out-of-court procedure constitutes a procedural due process violation. Although J had provided a statement to police several hours after the shooting, when shown two photographic lineups, one of which included the defendant's photo, she was unable to identify anyone as the shooter. Almost two years prior to trial, the defendant's original trial counsel had filed a motion to suppress any out-of-court identification of the defendant, but the motion was never ruled on by the trial court, the defendant's subsequently appointed counsel did not request that the court rule on the motion, and the defendant did not object at the time that J made her in-court identification of him.

         Held:

         1. Contrary to the claim of the state, the defendant did not waive his claim that J's in-court identification of him was unreliable and should have been excluded; because there was no evidence that, prior to J's in-court identification, there had been any suggestive out-of-court identification procedure and, given the state of the law at the time of the pretrial hearing and the in-court identification, J's identification of the defendant was permissible, the defendant would have had no reason to believe that objecting to the identification would provide him any relief, and, therefore, he could not have waived his claim, especially given that he did not know at the time of his trial that he had a right to be free from first time in-court identifications.

         2. J's first time in-court identification of the defendant violated the defendant's right to due process as set forth in Dickson and should not have been admitted: given that J's in-court identification of the defendant was preceded only by her unsuccessful attempt to identify the defendant in a photographic lineup and that the identity of the shooter was in dispute, the principles set forth in Dickson applied, and where, as here, J had the opportunity, shortly after the incident, to identify the defendant in a photographic lineup but was unable to do so, and her description of the shooter at the time of the incident was vague and included a description of the shooter's clothing, approximate age, height, build, and race, the record was adequate for this court to determine that J's in-court identification of the defendant, made two years later, was unreliable; moreover, the admission of the identification was not harmless beyond a reasonable doubt, as the state's case would have been considerably weakened without J's testimony identifying the defendant as the shooter in that the case was full of inconsistent statements and contradictory testimony, the jury had requested to hear a playback of J's testimony only, indicating that it considered the testimony to be important, and, in the absence of J's identification of the defendant, the state's case was not so overwhelming that it was clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible evidence.

         Procedural History

         Substitute information charging the defendant with the crimes of murder and carrying a pistol without a permit, brought to the Superior Court in the judicial district of New Haven, geographical area number twenty-three, where the defendant filed a motion to suppress identifications; thereafter, the case was tried to the jury before Blue, J.; verdict and judgment of guilty; subsequently, the court denied the defendant's motions for judgment of acquittal and for a new trial, and the defendant appealed. Reversed; new trial.

          OPINION

          BISHOP, J.

         The defendant, Quavon Torres, appeals from the judgment of conviction, rendered after a jury trial, of murder pursuant to General Statutes § 53a-54a and carrying a pistol without a permit pursuant to General Statutes § 29-35 (a). He claims on appeal that an eyewitness' first time in-court identification of him as the shooter should have been excluded pursuant to our Supreme Court's decision in State v. Dickson, 322 Conn. 410, 141 A.3d 810 (2016), cert. denied, U.S. (June 19, 2017) (No. 16-866).[1] We agree and reverse the judgment of the trial court.

         The jury reasonably could have found the following facts. On July 23, 2012, the defendant and two other young men, Marcus Lloyd and Freddie Pickette, were at 541-543 Orchard Street in New Haven, where the defendant's cousin, Tasia Milton, lived. One of them called the victim, Donald Bradley, on the phone to ask for a ride to Farnam Courts, also in New Haven. The victim parked his car, a four door Honda Accord, in the CVS Pharmacy parking lot, across the street from 541-543 Orchard Street, and went inside CVS Pharmacy. While the victim was in the store, the three men entered his car. Pickette sat in the front passenger seat, Lloyd sat in the rear passenger side seat behind Pickette, and the defendant sat in the rear driver side seat. The victim exited CVS and entered his car, sitting in the driver's seat, directly in front of the defendant. Pickette recommended that they go to the Burger King, which was very close to the CVS Pharmacy on Whalley Avenue, to get some food on their way to Farnam Courts.

         While in the drive-through line, but before ordering, the victim, then realizing that the defendant was in the car, told him to leave. When the defendant did not leave, the victim got out of the car and walked over to the passenger side. He leaned into the car, either in the front passenger seat, where Pickette was seated, or the rear passenger seat, where Lloyd was seated.[2] The defendant exited the car and walked toward the victim on the passenger side of the car. The victim was then fatally shot. The defendant, Lloyd, and Pickette exited the car and ran.

         The police arrived on the scene at approximately 7:20 p.m., and the victim was transported to the hospital, where he ultimately died from multiple gunshot wounds. The police were advised he was pronounced dead at 7:51 p.m., and received information that two suspects were inside the house at 541-543 Orchard Street. By 9 p.m., the police had the house surrounded. Eventually, the defendant and Lloyd emerged from the house, and they were arrested. The police obtained a search warrant for the third floor of the building and seized, among other items, a .38 caliber Colt revolver containing two live rounds. The weapon was later identified as the gun from which three of the four bullets found in the victim were fired.[3]

         Several hours after the shooting, two eyewitnesses, Theresa Jones and Lachell Hall, provided statements to the police. Jones reported that she saw the shooting while standing across the street from the Burger King at a Stop & Shop grocery store. She told the police in her initial statement that three black men had been arguing around a car that was parked in the drive-through lane at Burger King, and after the shooting, they ran from the back of the car, past the front of Burger King toward Orchard Street. She was shown a photographic lineup, and identified Pickette, whom she knew, and told the police that the shooter looked like Pickette. She was then shown another photographic lineup, which included the ...


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