Opinion
CR10112785.
12-10-2012
STATE of Connecticut v. Darnell MOORE.
UNPUBLISHED OPINION
JONGBLOED, J.
The defendant, Darnell Moore, was charged with the murder of Namdi Smart on or about August 26, 2010, in violation of C.G.S. § 53a-54a. Prior to trial, the defendant made an oral motion to suppress identification evidence in connection with the showing of photo arrays to witnesses during the course of the investigation by law enforcement authorities following the shooting death of Smart. The defendant's sole claim is that the identification procedures used were impermissibly suggestive because in each of the photo arrays shown to five witnesses, the defendant's photograph appeared in the same position, that is, position # 2. (Def. Ex. A, D, E, F and I.) The defendant claims that there was no systematic effort by law enforcement officers to ensure that the witnesses had no contact with each other prior to selecting the defendant from the photo array. The defendant argues that placing his photograph in the same position on the array shown to each witness creates an impermissible risk that the identification process will be tainted such that a witness will simply repeat what they have heard from others. The court held an evidentiary hearing in this matter on November 30 and December 6, 2012. Based on the facts set forth below and for the reasons set forth below, the motion to suppress is denied.
Neither the defendant nor the State submitted briefs in connection with the motion.
FINDINGS OF FACT
Norwich Police Officers Patrick Mickens, Greg McDonald, Corey Poore and James Curtis testified at the hearing. The court credits the witnesses' testimony and finds the following facts based upon the testimony and documentary evidence:
1. Norwich Police Sergeant Patrick Mickens responded to the scene of a shooting on Lake Street in Norwich in the late evening of August 26, 2010 having been notified by Kimberly Harris of the shooting. When he arrived, he saw Kimberly Harris who he knew as a confidential informant with whom he had worked for at least a year. She was upset and crying and stated that she had just seen someone shot in front of her. Sergeant Mickens took Ms. Harris in his unmarked car directly to the Norwich Police Department. She was placed in an interview room, provided with something to drink and tissues. After she had composed herself, she was interviewed. She did not speak to anyone on the way to the police department. Mickens showed her two photo arrays together with written witness instructions in the early morning hours of August 27, 2010. On one, (Def.Ex.A), she identified an individual she knew to be " Boo" in photograph # 2. On the other, (Def.Ex.B), she identified an individual she knew to be " Soda Pop" in photograph # 7. Harris signed and initialed both photo arrays.
2. Officer Greg McDonald of the Norwich Police Department testified that he was assigned to investigate the shooting on Lake Street on August 26, 2010. He stated that he maintained a database of street names and was assigned to meet with two witnesses who wished to meet at a location other than the Norwich Police Department. On August 27, 2010, McDonald met with two witnesses, Denise Dje Dje and Roslyn Hill, in a secluded area near a church parking lot. He separated the witnesses, that is, while he spoke with Ms. Dje Dje, Ms. Hill was standing further away drinking coffee and having a cigarette. He had no concerns that his conversations with one were overheard by the other. He showed Dje Dje two photo arrays together with the written witness instructions for photo identification (Def.Ex.D). In one, she identified the person in photograph # 2 as " Boo, " and stated she was " 100% positive he did the shooting." In the other, she identified the person in photograph # 7 as " Soda Pop." Dje Dje signed and initialed both arrays. Similarly, Ms. Hill was shown two photo arrays with instructions. (Def.Ex.E.) In one, she identified the person in photograph # 2 as " Boo, " stating " [t]hat's Boo. 100% positive." In the other, she identified the person in photograph # 7 as " Soda Pop." Hill signed and initialed both photo arrays.
3. Norwich Police Sergeant Corey Poore testified that he was assigned to the investigation into the shooting death on Lake Street in Norwich on August 27, 2010. As part of his assignment, he showed a photo array with written witness instructions to Larissa Reeves on August 31, 2010. He testified that Ms. Reeves came to the police department voluntarily to provide information. She identified the person in photograph # 2 as " ‘ Boo’ and the person who I saw shoot ‘ Big Man.’ " (Def.Ex.F.) She signed and initialed the photo array. Sergeant Poore testified that Ms. Reeves was fearful and she was placed into hiding. Poore also showed a photo array with written witness instructions to Tjamel Hendrickson. (Def.Ex.G.) This array differed from the array reflected in Defendant's Exhibits A, D, E, F and I. On that photo array, Hendrickson identified the person in photograph # 2 as " SA" and stated under witness comments regarding identification: " SA is the same person I saw walk down the street towards Lake St. just before the murder. SA came back a short time later by himself." (Def.Ex.G.) Hendrickson signed and initialed the array.
4. Norwich Police Detective James Curtis testified that he was assigned to the investigation into the shooting on August 26, 2010 and arrived at the crime scene shortly before midnight. In the early morning hours of August 27, 2010, he showed photo arrays to two individuals at the Norwich Police Department, Ms. Hutchison and Tjamel Hendrickson, also known as " Soda Pop." These two arrived at the police department independently. Detective Curtis first interviewed Ms. Hutchison who then left. Approximately 90 minutes later, Tjamel Hendrikson was brought into the police department by officers Carter and Mickens. Hendrickson was shown a photo array and pointed to the individual in photograph # 2. He answered affirmatively that the person in photograph # 2 was the person known to him as " Boo-Boo." (D.Ex.I.) He signed and initialed the array.
The State represented that it did not intend to offer evidence concerning Ms. Hutchinson's identification.
5. Each of the five individuals who made the identifications reflected in Defendant's Exhibits A, D, E, F, and I, also placed their initials next to each line of the written witness instructions for photo identifications. The instructions specifically stated that " The person you saw may or may not be in these photographs." Defendant's Exhibits A, D, E, F and I all reflect the same photo array in which the defendant is depicted at position # 2.
DISCUSSION
The defendant makes the sole claim that the identification procedures followed here were impermissibly suggestive because in each array shown to the witnesses in which he was identified, the defendant's photograph appeared in the same position, that is, position # 2. He argues that there was no effort on the part of law enforcement to ensure that the witnesses had no contact with each other and that the procedure followed created a risk that people will repeat what they have heard from others.
In determining whether a pre-trial identification procedure violated a defendant's due process rights, the court must conduct a two-pronged inquiry: (1) whether the particular identification procedure employed was unnecessarily suggestive and (2) if it was unnecessarily suggestive, was the identification nevertheless reliable in light of the totality of the surrounding circumstances. State v. Marquez, 291 Conn. 122, 135 (2009). The defendant has the burden of proving that the identification resulted from an unconstitutional procedure. State v. Pollitt, 205 Conn. 132, 162 (1987); State v. Cubano, 203 Conn. 81, 93 (1987). As stated in Marquez, :
[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 unreliable as to give rise to a very substantial likelihood of irreparable misidentification. See Simmons v. United States, [390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Id. at 142.
In Marquez, our Supreme Court clarified the definition of " unnecessarily suggestive" focusing on the mechanics of the procedure and the actions of the administering officers. In deciding whether a procedure is unnecessarily suggestive, the court should consider the composition of the photo array and the behavior of law enforcement in conducting the procedure. Id. at 161. Among the many factors which may be considered in determining whether the identification procedure was unnecessarily suggestive are whether a suspect's photograph was prominently displayed or highlighted and whether a second eyewitness was present during the presentation of a photo array. Marquez supra, at 161; State v.. Randolph, 284 Conn. 328, 385-87 (2007). See State v. Owens, 38 Conn.App. 801, 804-08 (1995) (the degree of likeness shared by the individuals pictured); State v. Colon, 70 Conn.App. 707, cert. denied, 261 Conn. 933 (2002) (the number of photographs included; a single photograph is unnecessarily suggestive absent exigent circumstances); State v. Reid, 254 Conn. 540, 556-57 (2000) (whether the witness was instructed that the suspect may or may not be included in the array); State v. Figueroa, 235 Conn. 145, 156 (1995) (whether one suspect's photograph was repeated in multiple arrays shown to the same witness).
The court finds that there was no evidence that the photo arrays or the procedure employed in obtaining the identifications were unnecessarily suggestive. The actions of the law enforcement officers in obtaining the identifications were appropriate in all respects. The defendant's photograph was not prominently displayed or highlighted and proper instructions were given to the witnesses who were each interviewed individually. Specifically, each of the witnesses was advised of the procedure in writing, and placed their initials next to each of the instructions, including the instruction that the person they saw " may or may not" be in the photographs. State v. Marquez, 291 Conn. at 162. There was no evidence that officers were anything other than neutral in administering the identification procedure and the defendant makes no claim that the officers attempted to influence the witnesses in making their identifications. The officers in fact made efforts to separate the witnesses and no identifications were made or even attempted in the presence of or within earshot of other witnesses. There was no evidence that the witnesses had contact with each other, or attempted to have contact with each other, concerning the identification. Indeed, the only claim made here is that the witnesses were shown arrays in which the defendant appeared in the same position, position # 2. There is no requirement under the circumstances presented here that the officers reconfigure photo arrays shown to different witnesses. As stated in Marquez, the court does not engage in a " best practices" test, or inquire whether a different procedure would be less suggestive, such as a double-blind, sequential identification procedure, but rather whether the traditional procedures followed were unnecessarily suggestive. 291 Conn. at 145.
Since the court does not find the identification procedures employed here to have been unnecessarily suggestive, the court need not proceed to determine whether the identifications were nonetheless reliable given the totality of the circumstances. State v. Marquez, 291 Conn. At 122, 141; State v. Artis, 136 Conn.App.568, 586 (2012), and cases cited therein.
For the foregoing reasons, the court finds no evidence to support the claim that the identifications were unnecessarily suggestive and the motion is to suppress is therefore DENIED.
It is So Ordered, this 10th day of December 2012.