State v. Brown ( 2015 )

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STATE OF CONNECTICUT v. CHRISTOPHER
ANTHONY BROWN
(AC 37646)
Lavine, Prescott and Bishop, Js.
Argued September 22—officially released November 24, 2015
(Appeal from Superior Court, judicial district of
Hartford, Mullarkey, J.)
S. Max Simmons, assigned counsel, for the appel-
lant (defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Robin D. Krawczyk, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
BISHOP, J. The defendant, Christopher Anthony
Brown, appeals from the judgment of conviction, ren-
dered after a jury trial, of kidnapping in the second
degree in violation of General Statutes § 53a-94 (a), and
conspiracy to commit kidnapping in the second degree
in violation of General Statutes §§ 53a-48 (a) and 53a-
94 (a). On appeal, the defendant claims that the trial
court improperly denied his motion to compel the state
to disclose the identity of a confidential informant.1 We
affirm the judgment of the trial court.
At trial, the jury reasonably could have found the
following facts. In the early morning of August 4, 2012,
the defendant, Christopher Anthony Brown, and two
associates abducted the victim, Neville Bar, and brought
him to an abandoned building located at 27 Glendale
Avenue in Hartford. The defendant and his two associ-
ates brought the victim to the basement of 27 Glendale
Avenue, tied his wrists and ankles with rope, and threat-
ened him at gunpoint, demanding to know where he
kept his supply of marijuana and cash. During the inci-
dent, the defendant and his associates stabbed the vic-
tim in the leg, hit him in the face with a gun several
times, and tortured him by melting a plastic water bottle
onto his arms. Before leaving the abandoned basement,
the three men took the victim’s wallet, which contained
$700, tied him with a blanket and a string of Christmas
lights, and left him in a bathtub.
On the morning of August 5, 2012, Hartford police
officers found the victim in the basement of 27 Glendale
Avenue after a neighbor heard him screaming for help.
When discovered, the victim was standing in the bath-
tub, covered in feces and urine, and bound by rope,
the string of Christmas lights, and the blanket. He was
confused and could only provide disjointed answers to
police questioning about the incident and the identity
of his assailants. He was then sent to Hartford Hospital
for treatment of his wounds and dehydration.
Later that day, Hartford police Detective Richard Sal-
keld visited the victim at the hospital at which time the
victim informed Salkeld that the three assailants were
black Jamaican men, one of whom had a ‘‘milky-white’’
left eye.
Following his conversation with the victim, Salkeld
spoke to the victim’s wife, Margaret Bar, and his niece,
Karina Reed. Reed informed Salkeld that she knew a
Jamaican male who had recently been evicted from 27
Glendale Avenue, but still used that location as a place
to party. She identified the Jamaican male as ‘‘Banit’’
and described him as having only ‘‘one eye.’’
On the basis of the descriptions provided by the vic-
tim and Reed, Salkeld searched the Hartford Police
database for black Jamaican men associated with 27
dant had recently been a resident of 27 Glendale Ave-
nue. A physical description of the defendant in the
police booking system indicated that one of the defen-
dant’s eyes was ‘‘whited over.’’
In the morning of August 6, 2012, Harford police
Detective Renee LeMark-Muir received information
from a registered confidential informant2 who, in the
past, had provided the police with credible and reliable
information that had led to the identification and loca-
tion of suspects. The confidential informant told LeM-
ark-Muir that on August 5, 2012, Reed had contacted
the informant, asked whether the informant had infor-
mation regarding the abduction of the victim, and asked
whether a Jamaican male known as ‘‘Banit’’ had been
involved. The informant told the detective that the infor-
mant had then spoken to the defendant, whom the infor-
mant knew by his street name ‘‘Banit.’’ The informant
stated that the defendant had confessed to kidnapping,
tying up, beating, and melting a plastic bottle on the
victim. The informant also stated that the defendant
did not believe that the victim would identify him or his
two associates because the victim was afraid of them.
On the basis of the results of the police database
search, the descriptions of the assailants from the vic-
tim and Reed, and the information from the confidential
informant, Hartford police Detective David Ritcher pre-
pared a photographic array consisting of eight photo-
graphs, one photograph of the defendant and seven of
black men of similar age, appearance, and dress. To
further make uniform the appearance of the individuals
and eliminate the distinct characteristic of the defen-
dant’s eye, Ritcher blacked out the left eye of each
individual in the photographic array.
At approximately noon, on August 6, 2012, Ritcher
and Salkeld visited the victim in the hospital. They
administered the standard witness identification
instructions and also gave the victim a form containing
the same instructions. The victim initialed each instruc-
tion and signed the form, indicating that he understood
each instruction. The detectives then presented the pho-
tographic array to the victim, who selected the photo-
graph of the defendant, whom he knew as ‘‘Banit.’’
He then provided the police with a signed voluntary
statement stating ‘‘this is the guy who robbed me and
kidnapped me.’’
The defendant was subsequently arrested pursuant
to a warrant and charged in a five count long form
information with: kidnapping in the second degree in
violation of § 53a-94 (a); assault in the second degree
in violation of General Statutes § 53a-60 (a) (2); robbery
in the first degree in violation of General Statutes § 53a-
134 (a) (4); conspiracy to commit kidnapping in the
second degree in violation of §§ 53a-48 (a) and 53a-94
(a); and conspiracy to commit assault in the second
degree in violation of §§ 53a-48 (a) and 53a-60 (a) (2).
Prior to trial, the defendant moved to compel the
disclosure of the confidential informant’s identity. In
support of his motion for disclosure, the defendant
claimed that he had a right to contact and to interview
the confidential informant to discover whether the
informant was credible and if the informant possessed
information helpful to his case. The defendant also
expressed suspicion that the confidential informant,
police, and victim had fabricated the identification of
him in the photographic array. In that regard, the defen-
dant argued, through counsel, that while the victim
had been unable to identify his assailants when police
rescued him from the basement of 27 Glendale Avenue,
‘‘all of a sudden, it looks like [the informant] came along
and said whatever [the informant] said and then all
of a sudden the [identification] was made.’’ Defense
counsel further stated that ‘‘we have to jump to the
spot where we assume that the police are telling the
truth. I hope—we have to assume the police are telling
the truth. I hope that they are, they probably are, but
I have a shot, I think, to determine whether or not
there’s any issue with respect to these people in their
credibility.’’
The defendant offered, as an additional reason for his
request, his desire to investigate whether the informant
possessed any information that was relevant to his
defense. Defense counsel stated to the court that ‘‘I
can’t tell if [the informants] were eye witnesses or not.
[The state] says they were not, but I read them and I
wasn’t sure. . . . I don’t know, they might be helpful
to me. I think I have a right to at least try to talk to them,
with any limitations that the court wants to impose, I’m
happy to do that, but all this is rumor, upon rumor,
upon rumor and it’s just hard and it’s not fair.’’ Defense
counsel concluded by requesting that the court ‘‘order
the names of the [informants] to be turned over to me
so that I can contact them and determine if they can
be helpful to the case.’’
The state objected to the disclosure, arguing that
the confidential informant was credible because that
person was registered with the Hartford police and had
provided reliable and credible information to the police
in the past. The state argued, as well, that the informant
had no independent information regarding the crime
and had only aided the police in the identification of a
suspect whom the victim subsequently and indepen-
dently picked out of a photographic array. Finally, the
state argued that the informant likely would be killed
if the informant’s identity was disclosed. In that regard,
the state asserted that although the defendant had con-
fessed details of the crime to the confidential informant,
the state said that it would not be calling the informant
as a witness at trial in order to protect the infor-
mant’s identity.
In denying the defendant’s motion for disclosure, the
court stated: ‘‘[A]s far as the discovery is concerned,
there’s a purpose to withholding the identity of infor-
mants, a public interest purpose, with law enforcement
in its course, discretion, and duty to balance and the
preservation of the underlying purpose of the privilege
with the fundamental requirements of fairness. That’s
under State v. Jackson, [239 Conn. 629, 632–33, 687
A.2d 485 (1997).] . . .
‘‘Some of the questions that arise [are] whether or
not the information was given in confidence that it
would not be disclosed. If that was essential to main-
taining the relationship between the parties and the
police, then it fosters a good community purpose as far
as confidential informants are concerned, and if the
disclosure would be harmful to that purpose. Now, if
the informant was a witness to or a participant in a
crime, it would be required that the[ir] be—the identity
be disclosed. . . .
‘‘Now, the defense in this particular motion has the
burden to establish, beyond mere speculation, that the
information would assist them, and if the only informa-
tion they have is that the defendant made [an] admission
to them, and the state is not offering that, I can’t see
the necessity for disclosing that, nor do I find the
defense has met its burden.’’
At the subsequent jury trial, the defendant was con-
victed of kidnapping in the second degree in violation
of § 53a-94 (a), and conspiracy to commit kidnapping
in the second degree in violation of §§ 53a-48 (a) and
53a-94 (a).3 The court rendered judgment accordingly
and sentenced the defendant to a total effective term
of forty years incarceration, execution suspended after
twenty-three years, followed by five years conditional
discharge. This appeal followed.
On appeal, the defendant claims that the trial court
abused its discretion by denying his motion for disclo-
sure of the identity of the confidential informant. Specif-
ically, he argues that the circumstances leading to the
identification of the defendant from the photographic
array ‘‘support a reasonable inference’’ that the police,
victim, and informant fabricated the defendant’s
involvement in the crime and that the testimony of
the informant was necessary to present this defense of
mistaken identity to the jury.4 We are not persuaded.
‘‘As a threshold matter, we set forth the standard by
which an appellate court may review the propriety of
a trial court’s decision to order disclosure. . . . [T]he
determination of whether an inform[ant’s] identity shall
be revealed is reviewed as a matter involving the exer-
cise of discretion by the court. . . . In determining
whether the trial court [has] abused its discretion, this
court must make every reasonable presumption in favor
of [the correctness of] its action. . . . Our review of a
trial court’s exercise of the legal discretion vested in it
is limited to the questions of whether the trial court
correctly applied the law and could reasonably have
reached the conclusion that it did.’’ (Citations omitted;
internal quotation marks omitted.) State v. Hernandez,
254 Conn. 659, 665–66, 759 A.2d 79 (2000).
Generally, the state is not required to disclose a confi-
dential informant’s identity. Rovario v. United States,
353 U.S. 53, 59, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957).
This is known as the informant’s privilege, but is more
appropriately described as ‘‘the Government’s privilege
to withhold from disclosure the identity of persons who
furnish information of violations of law to officers
charged with enforcement of that law.’’ Id.
‘‘Roviaro established a test for assessing challenges
to the applicability of the informant’s privilege. This
test involves the balancing of two competing interests:
(1) the preservation of the underlying purpose of the
privilege; and (2) the fundamental requirements of fair-
ness. . . . The underlying purpose of the privilege is
to protect the public interest in the flow of information
to law enforcement officials. The fundamental require-
ments of fairness comprise the defendant’s right to a
fair trial, including the right to obtain information rele-
vant and helpful to a defense. . . . Whether [disclosure
is warranted depends] on the particular circumstances
of each case, taking into consideration the crime
charged, the possible defenses, the possible signifi-
cance of the informant’s testimony, and other relevant
factors. . . .
‘‘Once the state has invoked the privilege, it is then
the defendant’s burden to show that the balance of the
evidence falls in favor of disclosure. . . . When the
defendant demonstrates that disclosure of an infor-
m[ant’s] identity, or the contents of his communication,
is relevant and helpful to the defense, or is essential
to a fair determination of a cause, the government’s
privilege must yield. . . . Disclosure is essential to the
defense where nondisclosure could hamper the defen-
dant’s right to a fair trial, such as where the informant
is a key witness or participant in the crime charged,
someone whose testimony would be significant in
determining guilt or innocence. . . . Mere speculation
that the informant’s information will be helpful to the
defense is not sufficient to mandate disclosure. . . .
[Accordingly, c]ourts generally agree that if the infor-
mant provides information to law enforcement officers
without any further involvement, disclosure must yield
to the protection of the informant.’’ (Citations omitted;
internal quotation marks omitted.) State v. Messam, 108
Conn. App. 744, 748–50, 949 A.2d 1246 (2008).
The rationale for this point of view is that the pro-
posed testimony of an informant, who neither wit-
nessed nor participated in the criminal activity, is
typically based on speculation. Because informants
who neither witnessed nor participated in the criminal
activity under scrutiny generally do not possess first-
hand knowledge of the events, their information typi-
cally is not found sufficient to defeat the public’s
interest in protecting informant anonymity. See id.,
752–53 (‘‘[b]ecause the confidential informant was not
there to witness the [criminal activity], the court reason-
ably concluded that the informant would not have had
any relevant testimony to offer as to the defendant’s
defense’’); State v. Hunt, 72 Conn. App. 875, 882–83,
806 A.2d 1084 (concluding that ‘‘[w]ithout any evidence
to suggest that the confidential informant was a witness
to, or a participant in, the transaction, the proposed
testimony was based simply on speculation’’ where
defendant ‘‘conten[ed] that the informant ‘had the
potential to the defense to rebut [the] charges with
potential testimony’ ’’ [emphasis in original]), cert.
denied, 262 Conn. 920, 812 A.2d 863 (2002). Therefore,
although not a fixed rule; Roviaro v. United States,
supra, 353 U.S. 62; it is typically not an abuse of discre-
tion for a trial court to deny a defendant’s motion for
disclosure of an informant’s identity if the informant
did not witness the crime charged and merely provided
police with information that initiated an investigation
of the defendant. See State v. Richardson, 204 Conn.
654, 667–69, 529 A.2d 1236 (1987).
On the basis of our review of the record, we agree
that the defendant’s proffer in support of his motion
for disclosure amounted to mere speculation. The
defendant did not describe the substance of the infor-
mant’s potential testimony and indicated that he had
no idea as to whether the informant might have been a
witness or participant in the criminal activity. Moreover,
the defendant did not even claim that the substance of
the informant’s potential testimony would be relevant
and helpful to his defense, stating only, through counsel:
‘‘[T]he prosecutor says [the informant] would be helpful
to the state, maybe that’s the case, I don’t know, they
might be helpful to me.’’ Similarly, in his concluding
remarks before the court ruled on the disclosure
motion, defense counsel asked the court to ‘‘order the
names of the [informants] be turned over to me so that
I can contact them and determine if they can be helpful
to the case.’’ Accordingly, the defendant, in pursuit of
his motion for disclosure, did not make any proffer,
either by eliciting testimony or through oral argument,
regarding how his right to a fair trial would be denied
if the informant’s identity was not made known to him.5
The court, in balancing the competing interests of the
state and the defendant, concluded that the defendant’s
unsubstantiated assertion that access to the informant
may have aided his case was insufficient to meet his
burden necessary to compel the disclosure of the infor-
mant’s identity. The court explained, ‘‘the defense in
this particular motion has the burden to establish,
beyond mere speculation, that the information would
assist them, and if the only information they have is
that the defendant made [an] admission to [the infor-
mant], and the state is not offering that [admission], I
can’t see the necessity for disclosing that, nor do I find
the defense has met its burden.’’
The balance weighs even more heavily toward non-
disclosure when, as is the case here, the defendant can
neither claim with certainty that the informant was a
witness to or participant in the charged crime, nor point
to how the informant’s testimony at trial would, poten-
tially, be helpful to the defense. See State v. Hunt,
supra, 72 Conn. App. 883. Proffers such as these are
too speculative to meet the defendant’s burden required
to compel disclosure. See State v. West, 178 Conn. 444,
446, 423 A.2d 117 (1979) (concluding trial court did not
abuse its discretion in denying defendant’s request to
disclose informant’s identity where ‘‘defendant never
advanced a specific reason for needing disclosure of
inform[ant’s] identity . . . [but] merely asserted that
it might be necessary to his defense’’). In such cases,
the Roviaro balancing test will rarely, if ever, favor dis-
closure.
Finally, the defendant argues that an inconsistency
between the victim’s initial and subsequent statements
to the police regarding his ability to identify his assail-
ants raised a suspicion concerning the relationship
between the informant and the development of proba-
ble cause. See footnote 4 of this opinion. This claim,
however, rested entirely on innuendo propelled only
by speculation. Suspicions, without factual support, are
too speculative to meet the burden necessary for over-
coming the informant’s interest in anonymity and the
public’s interest in effective law enforcement.6 Indeed,
the only factual assertions presented to the court
directly opposed the defendant’s suppositions. During
argument, the state asserted that the informant’s infor-
mation only led to the inclusion of the defendant’s pho-
tograph in the photographic array and that the victim
independently picked the photograph out of the array
without coercion from the police. Additionally, the state
asserted that Reed’s statement to Salkeld independently
corroborated the informant’s tip. See State v. Richard-
son, supra, 204 Conn. 661 (denying disclosure of infor-
mant’s identity where informant’s tip corroborated).
In sum, the record reflects that the defendant’s claim
for disclosure was based on ‘‘[m]ere speculation that the
informant’s information will be helpful to the defense
[which] is not sufficient to mandate disclosure.’’ (Inter-
nal quotation marks omitted.) State v. Hunt, supra, 72
Conn. App. 883. Thus, on the basis of this record, the
court could have reasonably reached the conclusion
that the defendant did not meet his burden to compel
the disclosure of a confidential informant’s identity with
a bare assertion that an informant’s identify might be
necessary to his defense without advancing a specific
reason for needing disclosure of the informant’s iden-
tity. State v. West, supra, 178 Conn. 446. Accordingly,
the trial court did not abuse its discretion and the defen-
dant’s claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant’s notice of appeal raised several challenges to his convic-
tion. The only ground that the defendant pursues on appeal, however, is
that ‘‘the trial court abuse[d] its discretion in denying his motion to disclose
the identity of a confidential informant.’’
2
Although two confidential informants were involved in the police investi-
gation and the defendant initially sought the disclosure of the identities of
both of them prior to trial, the defendant’s challenge on appeal is limited
to the disclosure of only one of the informants. Our analysis is similarly
limited to that specific informant.
3
The jury also convicted the defendant of conspiracy to commit assault
in the second degree in violation of §§ 53a-48 (a) and 53a-60 (a) (2). The court,
however, and without objection from the state, dismissed that conviction
pursuant to State v. Polanco, 308 Conn. 242, 248, 61 A.3d 1084 (2013).
4
At trial, the defendant argued that he required the informant’s identity
in order to assess the informant’s credibility, to determine whether the
informant’s information was based on hearsay, and to learn whether the
informant was biased against him. On appeal, the defendant slightly recasts
his prior argument, recalibrating it to assert that the sequence of certain
events during the police investigation reasonably could be described as
suspicious and that his reasonable suspicion supports the inference that
the informant could have offered information to the defense regarding the
propriety of the police investigation. Specifically, the defendant identifies
inconsistencies between the victim’s initial statement to the police when
he was rescued from the basement and his subsequent statement given at
the hospital. Initially, the victim—who police had ‘‘trouble understanding’’
and who gave ‘‘unconnected’’ responses to police questions—did not give
the police any details about the identity of the assailants or the white eye
of the defendant, but merely told the police that he could identify his assail-
ants if he saw them again. Later, the victim was able to describe his assailants
as black Jamaican men, describe the defendant’s unique white eye, pick
the defendant out of a photographic array, and identify him as ‘‘Banit.’’
Accordingly, the defendant argues that a suspicion that the police, informant,
and victim deceitfully collaborated to fabricate the identification of the
defendant can be inferred from the inconsistent statements and that ques-
tioning of the informant—and not the police or victim—is necessary to quell
his suspicion.
5
Although we note that the defendant did not request an evidentiary
hearing in support of his motion for disclosure of the informant’s identity,
we do not mean to suggest that such a hearing is invariably required in this
context. In the case at hand, however, the absence of any evidentiary basis
for the motion, combined with defense counsel’s inability to articulate any
supporting factual basis not resting on mere speculation, left the court with
nothing more than mere conjecture from the defendant to balance against
the state’s interest in nondisclosure.
6
Alternatively, it could be inferred that the inconsistency between the
victim’s statements was the product of trauma rather than deceit.