Free Statement of Material Facts - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ----------------------------------------------------- X : LARRY POWELL, : Plaintiff, : : v. : : THOMAS SCANLON and BRIAN CRONIN : Defendants : : ----------------------------------------------------- X

300 CV 1085 (HBF)

March 17, 2004

LOCAL RULE 56(a)1 STATEMENT OF FACTS Defendants City of Stamford, et al, submit this Rule 56 (a)1 Statement of Facts in support of its Motion for Summary Judgment. Pursuant to Rule 56(a)3, each statement of fact is supported by a citation to the criminal transcript or to the Exhibit attached to the Motion for Summary Judgment. References are to the trial transcripts from the criminal trial on February 414, 2003. Mr. Powell was represented by Public Defender Mark Welsh; the Assistant State's attorney Michael Colombo was the prosecutor; the trial judge was Hon. Martin J. Nigro. Attached hereto as Ex A is a summary prepared of the entire criminal trial transcript (44 pages). All of the transcripts are also attached to the Motion for Summary Judgment. The state's case started 2/4/03, with testimony of arresting officer Tom Scanlon followed by PO Brian Cronin, who arrived at the scene when Powell and Scanlon were on the ground struggling. On 2/5/03 three more police officers testified (PO David Dogali; Sgt James Van Allen; and Sgt Tom Martin); Dr. Suzy Shukovsky was taken out of order by the defense who testified that Powell was drug dependent at the time of the incident; Sgt Tom Mitchell about chain of custody for drugs; Dr. Joel Milzoff from state Public Safety, Dept of Toxicology about cocaine in freebase or nonsoft form; Retired PO Steven DeVito testified that Fairfield Court is controlled by the Stamford Housing Authority; Sgt Van Allen testified about his observations after coming on the scene after the arrest; Sgt Tim Shaw as an expert on drug sales; on 2/6/03
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A. ARREST OF MR. POWELL 1. OFFICER SCANLON testified on 2/4/03, Ex. C, pages 2-11 (direct by Assistant State's Attorney Michael Colombo) and pages 13- 41 (cross and redirect); Officer Scanlon has been a Stamford police officer for 6 years, and a Darien police officer for 1.5 years prior to that; he had 4 months training at Municipal training academy at Meriden (2/4/03, p 2, Ex. C)

2.

He's had training in making narcotics arrests and has made approx. 200 narcotics arrests (id, p.3, Ex. C)

3.

On March 4, 2000 at approximately 0133 Officer Thomas Scanlon observed a car parked in the middle of the road, stopped in front of 27 High Street, a known drug location. (id, pgs 3-4, Ex. C)

4.

The plaintiff got out of the car and walked into Fairfield Court, and Officer Scanlon recognized the plaintiff as Larry Powell from previous investigations;

Mr. Powell testified; on 2/11/03 Mr. Powell's witnesses testified- Vera Carter; Marie Sales as Director of Liberation House that Mr. Powell was drug-dependent and had been in treatment for drug dependency; in her opinion, he was drug dependent; another witness for Mr. Powell testified, Della Morgan; Flo Gamble; the state called Sgt. Kearns and P.O. Michael Miranda as the fourth officer to arrive at the scene, who contradicted some of the testimony of Mr. Powell's witnesses. The Defense on 2/13/03 called Dr. Henry Backe who testified how Mr. Powell could have received the fractured leg and what he observed from the x-ray; on 2/14/03, after closing arguments and charge, the jury found Mr. Powell guilty of possession and interference; on April 17, 2003 J. Nigro sentenced Mr. Powell to five years in jail, followed by three years of special

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he yelled for Mr. Powell to stop, which the plaintiff ignored. (Id, pgs 5-7, Ex. C).

5.

Officer Scanlon then walked into the complex and observed Mr. Powell at the door of building 12. Officer asked Larry if he could talk to him and he said yes. (Id p.6, Ex. C)

6.

Larry Powell said the guy in the car was looking for marijuana so he bought him over to Fairfield Court to get some. (Id, p.9, Ex. C)

7.

Powell gave permission to be searched for drugs and said that he didn't have any drugs (id, p. 9, Ex. C)

8.

Scanlon was concerned because drugs and weapons go hand-in-hand. (Id, p. 39, Ex. C)

9.

The search started with the hat and PO Scanlon felt lumps in the fold of Mr. Powell's knit cap (id pgs 7-10, 49, Ex. C); the knit hat was made Ex. 1.

10.

MR. POWELL testified on 2/6/03- pages 1- 43 (direct by Public Defender Mark Welsh) and pgs 46-167 cross by Asst State's attorney Colombo; pages

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169-181 (re-direct and re-cross). Mr. Powell was 49 and weighed 200-210 pounds on the night of the arrest. (2/6/03, pgs 1, 25, Ex.E).

11.

He testified about his activities on the day of the arrest, on March 4, 2000- he worked with his cousin rehabbing houses as a job and after work, showered at his mother's house and walked to No. 13 Fairfield Court to meet a young lady. (2/6/03, pgs. 2-4, Ex. E).

12.

He got a ride to Fairfield Court from someone who wanted to buy weed. (2/6/03, p. 8, Ex. E).

13.

Officer Scanlon asked Mr. Powell where he was going and asked if he could frisk him. (Id p. 37, Ex. E)

14.

Mr. Powell denied that he was wearing the knit hat, in evidence, that the police said contained 6 bags of cocaine in the fold. (Id, pgs. 15-16, Ex. E).

15.

Mr. Powell said he was not doing anything wrong when Officer Scanlon forced him up against the wall and then onto the ground, and cuffed him and then made a code 20 call for immediate assistance. (Id, pgs. 18-19, Ex. E).

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16.

Mr. Powell denied that he had any drugs on him and that he was maced by PO Scanlon and arrested for no reason, and without a struggle. (Id, pgs. 103, 105, 111, Ex. E).

B. THE STRUGGLE BETWEEN POWELL AND SCANLON- USE OF FORCE 17. After PO Scanlon found the lumps in Powell's knit cap, Mr. Powell resisted arrest and struggled to get away. PO Scanlon was at a disadvantage in this struggle because of his smaller size relative to the plaintiff. (See p.2, last line, Scanlon incident report, attached hereto as Ex B- "he is a very strong individual... approximately 6'2", 230 pounds which is significantly larger than I am")

18.

Officer Scanlon yelled at the plaintiff to stop resisting, but instead the plaintiff reached for the officer's gun. (p.3, arrest report, Ex. B)

19.

Officer Scanlon struggled to keep the plaintiff's hand off his gun and tried to grab his cap-stun out of its holster. (Id, Ex. B)

20.

Officer Scanlon finally got his cap-stun out when the plaintiff ran to his right

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and tried to grab the black hat that had dropped to the ground. Officer Scanlon then proceeded to attempt to spray the plaintiff in the face, but the plaintiff turned his head and covered it and charged the officer, knocking the pepper spray out of Officer Scanlon's hand. (Id, Ex. B)

21.

Mr. Powell ran towards Building 12 and Officer Scanlon tackled Mr. Powell on the concrete steps yelling at him to stop resisting. Mr. Powell continued to struggle and pushed Officer Scanlon off him and ran into the courtyard where Officer Scanlon tackled him again. (p.3, Scanlon incident report, Ex. B)

22.

The struggle continued with Mr. Powell on top of Officer Scanlon. Officer Scanlon grabbed onto Mr.Powell's wrists and Mr. Powell then attempted to run away at which point Officer grabbed Mr. Powell's ankles and climbed onto his back. (Id, Ex. B).

23.

While Mr. Powell was flailing away with his elbows at Officer Scanlon's head, Officer Scanlon managed to reach his radio but not get it out of its holster. He did manage to key the radio and yell "Code 20 Fairfield Court." (Id, Ex. B)

24.

A dispatcher repeatedly tried to call Officer Scanlon to get his exact location, but the officer was unable to grab his radio and advise. (Id, Ex. B)

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25.

Officer Scanlon then heard police sirens approaching and heard other officers and yelled to them that he needed help in the courtyard. (Id, Ex. B)

26.

Officers Cronin and Dognali were first on the scene and assisted Officer in controlling Mr. Powell. (Id, Ex. B)

27.

OFFICER BRIAN CRONIN testified on 2/4/03 (Ex. C), pgs 45-67 (direct by Ass't State's Attorney Colombo); pages 68-94 (cross by PD Mark Welsh); pgs. 95-99 (re-direct and re-cross).

28.

PO Cronin worked for SPD for 6 1/2 years and is assigned to Narcotics and organized crime; he worked undercover; he was involved in close to 100 narcotic offenses (id, pg. 45-46, Ex. C).

29.

Officer Cronin was in full patrol uniform on 3/4/00 and was working with partner Dogali on the midnight shift. He was on West Main Street when he heard the scream of code 20. (id, p. 47, Ex.C).

30.

Code 20 means to respond ASAP with lights and sirens. (Id, p. 48, Ex. C).

31.

Dispatch tried to re-contact Scanlon but he couldn't respond. (Id, p. 49, Ex. C).

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32.

He was scared about PO Scanlon. They parked in the lot off of High Street and ran towards the courtyard. (Id p. 50) PO Cronin was the first person out of the car. He had his flashlight, handcuff, mace and gun. (Id, p. 51, Ex. C)

33.

Scanlon was behind Powell and Powell was swinging his elbows violently back and forth grazing Scanlon ("Tommy") in the head. Both parties were facing down. (Id, p. 52, Ex. C)

34.

Powell's feet looked like they were doing a dance as he tried to get a better stance. It looked like an all out fight was going on. (Id p. 53, Ex. C)

35.

Powell was bouncing himself on his hands and his feet and he was alternating hands throwing his elbows back and widely at Scanlon. (Id p. 74, Ex. C).

36.

Powell was on his hands and his feet almost like a football position. (Id, p. 97, Ex. C).

37.

Cronin tried to help Tommy by sprinting over to them and kicking down on one of Powell's legs. (Id, p. 54, Ex. C)

38.

PO Cronin ran as fast as he could. He weighed 185lbs. (id, p. 55, Ex. C). It was two seconds between the time Cronin saw Scanlon and when he physically came

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down on Powell's leg. (Id, p. 56, Ex. C).

39.

PO Cronin took 11 Polaroid photos of Scanlon, which were introduced into evidence (State's Ex. 3). The photos showed that PO Scanlon's clothes and holster were muddy and his holster torn: the lower steel bolt that fastens the weapon was popped out and the leather was loose. (Id, p. 65-66, Ex. C)

40.

His holster and belt were covered with mud and he had mud all over his pants. His knee was red and swollen and he was winded and sweaty. (Id p. 66, Ex. C).

41.

PO Cronin denies that he struck Mr. Powell's leg with a flashlight or nightstick, and he admits that he struck Mr. Powell's leg with his foot. (Id, p. 90, 93, Ex. C).

42.

PO DAVID DOGALI testified on 2/5/03 (Ex. D), pages 2-34 (direct by Colombo); pgs. 35-55 (cross, Welsh). He worked the 11:00 p.m. to 7:00 a.m. shift on March 4, 2000 with his partner Brian Cronin and they were assigned Southfield Village, in a marked patrol vehicle. (Tr. 2/5/03, p. 2, Ex. D).

43.

Officer Dogali states that he and his partner heard a transmission over the radio, a "code 20 Fairfield Court" by Officer Scanlon, a request for an emergency assistance by another officer, so they responded to the area with lights and

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sirens. (Id p.3, Ex. D)

44.

Once on the scene Officer Cronin got out of the car first as Officer Dogali was driving. Both officers began yelling out to Tommy (Officer Scanlon) to find his location. He heard Tommy yelling for help and saying, "Stop resisting" (p. 5, Ex. D).

45.

Officer Dogali saw Officer Scanlon on the ground struggling with a party. Officer Scanlon was at one point on his knees trying to hold onto an individual who was underneath him. Officer Scanlon was being lifted up off his knees and then back down onto his knees as if he was getting tossed around. (Id p. 6, Ex. D).

46.

At the time of the struggle, the suspect was swinging his elbows very wildly rearward toward Officer Scanlon's head and face area as the Officer stood behind him. (Id p. 7, Ex. D)

47.

Officer Dogali yelled to the suspect to stop resisting and to put his hands behind his back. (Id, p. 7-8, Ex. D).

48.

Officer Dogali recalls Officer Cronin going to the left of where Officer Scanlon

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was and PO Cronin went down onto one of his legs causing that party to drop down flat onto the ground. (Id p. 8, Ex. D)

49.

He gave the court a demonstration of how he and Officer Scanlon had to struggle with the defendant to get him handcuffed. (Id p. 9, 38, 48-49, Ex. D).

50.

SGT MARTIN testified on 2/5/03 (Ex. D), pgs. 56- 61. Sgt. Martin has been a Stamford Officer for twenty-four years On the night of the incident Sergeant Martin was working the midnight shift and was in a marked police car when he heard the code 20 over the radio in which he responded to immediately. (Tr. 2/5/03, p. 57)

51.

Upon arrival Sergeant Martin saw Officers Scanlon, Cronin and Dogali had a gentleman handcuffed on the ground and Scanlon looked like he had been in the fight of his life. (Id p. 58)

52.

Scanlon's rear end, gun belt, gun, holster all had mud all over it. (p. 59).

53.

Sergeant Martin found Scanlon's lost pepper spray by Unit 11. (Id p. 60).

54.

SGT VAN ALLEN testified on 2/5/03 (Ex. D, pgs 97-132; he is made an expert with regard to crime scene reconstruction. (Tr. 2/5/03, p. 97).

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55.

When Sgt Van Allen arrived at the scene Officers Dogali and Cronin were already there and Mr. Powell was on the ground handcuffed behind his back and still moving around quite a bit. (Id 101)

56.

Officer Scanlon was breathing extremely heavy, his uniform was a mess, he was covered with dirt and mud, grass was imbedded in the back of his uniform belt, the gun belt, in the gun and the gun belt holder. The bottom screw of the holster was missing it had been forced out. (Id p. 103).

57.

Both Officers Dogali and Cronin were also breathing heavy. (Id, p. 104)

58.

MR. POWELL testified about the struggle on 2/6/03 (Ex. E, pgs. 16- 33.

59.

Mr. Powell was searched by PO Scanlon twice and at this time Mr. Powell dropped his arms and his head. Powell felt something (mace) go across the top of his head. Officer shoved his hands back up and placed him under arrest for interference. (Tr. 2/6/03, pgs. 18-19, Ex. E).

60.

Once being led away from the wall Mr. Powell then realized that he had been pepper sprayed because he can feel something coming towards his eyes from his head and it was burning. (Id p. 20, Ex. E).

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61.

Officer Scanlon then bought Mr. Powell between the wall and the walkway. Girls are now out side yelling to Officer, "Why are you arresting him? He didn't even do anything". (Id p. 21, Ex. E)

62.

Officer had Powell on the ground face down with one foot on the ground and holding on to the handcuffs. (Id p. 22, Ex. E).

63.

As the crowd began to get too close to the Officer, he used his radio and called in some kind of code. Officer Cronin arrived. (Id p. 23, Ex. E)

64.

Officer Cronin said "F--- you" to Powell and Powell returned the favor. Powell felt a blow that dazed him. (Id p. 27, Ex. E)

65.

Mr. Powell was struck on the leg after being handcuffed, and only after he told PO Cronin "f--- you". (Id, pgs. 113, 115, Ex. E).

66.

Mr. Powell claimed that he could see his shinbone sticking out of his leg- "the bone came completely out of my skin." (Id, pgs 118-119, Ex. E)

67.

Mr. Powell called witnesses to verify his story, such as Vera Carter who testified that she witnessed a police officer tackling Mr. Powell to the ground,

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and that he was beaten by a flashlight by 3-4 officers who were hitting Mr. Powell all over, even though he was doing nothing wrong. (Tr. 2/11/03, Ex. F, pgs. 1-6, 72-74)

68.

Vera Carter admitted that she was doing cocaine that night. (Id, p. 8, Ex. F), and she was an active drug user, and was evicted from her Housing Authority apartment for drug use (id, p. 12, 18, 39, 40, Ex. F)

69.

Two other witnesses were called to verify Mr. Powell's version, and one said that she didn't see anything (Della Morgan, p. 167-168, Ex. F), and the other said that Mr. Powell asked her testify that she saw police beating him up and she didn't see that (Flo Gamble, p. 178, Ex. F).

C. POST STRUGGLE EVENTS, CONVICTION, SENTENCE AND APPEAL 70. Officer Scanlon proceeded to retrieve Mr. Powell's cap where he recovered six plastic bags of cocaine and one loose rock. (Scanlon incident report, Ex., middle of p.4)

71.

Officer placed them in an evidence bag and retained custody until placed with the state and city property sheets. He did an ODV test on a loose piece and it tested positive for presumptive presence of cocaine. (Id, Ex.B, p. 4)

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72.

Evidence total weight was 1.1 grams. Mr. Powell's wool cap was placed into evidence also. (Id, Ex. B, p. 4).

73.

After Officer Thomas Mitchell of the Stamford Police Department, who works in property and evidence. identified the bags of cocaine, they were admitted as a full exhibit. (Tr. 2/5/03, Ex. D, pgs 77-82)

74.

Dr. Milzoff of the Connecticut Department of Public Safety control substance toxicology section in Hartford to the stand. Doctor is declared an expert, and Drugs are identified as being cocaine in the freebase or nonsalt form. (Tr. 2/5/03, Ex. D, 83-87).

75.

Mr. Powell was transported to the hospital for treatment of leg pain and a laceration on his forehead. (Scanlon incident report, p.4, Ex. B).

76.

Officer Scanlon was treated for an abraded left hand and an injured left knee, and a severe bruise to his left knee and shin area. (Id, p.4, Ex. B).

77.

Dr. Suzy Shukovsky of Stamford Hospital testified that she treated Officer Scanlon at the hospital, and sustained multiple abrasions and contusions to various parts of his body and left hand and right knee, and an injury to his hand. (Tr. 2/5/03, Ex. D, pgs. 62-73).

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78.

Exhibit K (introduced at p. 158, Tr. 2/6/03, Ex. E) is the x-ray of Mr. Powell's leg, showing a hairline fracture of his shinbone.

79.

On cross-examination, Mr. Powell admitted that his hospital consent for treatment form indicates that there was cocaine in his system (consent form is Ex 8; Tr. 2/5/03, Ex. E, p. 73-77).

80.

Mr. Powell denied that he resisted arrest (id, p.140); that he didn't have the drugs that are in evidence on him, and doesn't know where they came from (id, pgs. 145); he denied there was a scuffle, and doesn't think there was any reason for Officer Scanlon or Cronin to be out of breath (p. 144, Ex. E).

81.

Mr. Powell admitted that he was drug dependent. (Id, p. 152, Ex. E).

82.

Mr. Powell claims that the cocaine found in his blood was from a Percocet that he had taken earlier that day for a toothache. (Id, p. 164, Ex. E).

83.

Mr. Powell does not know why the hospital, before treating his fractured leg, had his mother sign his consent to treatment form, since he was under the influence of cocaine (id, p. 167, Ex. E).

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84.

Marie Sales, director of Liberation House, testified as to past treatment of Larry Powell and that he was, in her opinion, drug-dependent. (Tr. 2/11/03, Ex. F, pgs. 114, 119-120, 133-135). Percocet cannot be confused with cocaine in a blood test. (Id, p. 132, Ex. F).

85.

Dr. Henry Backe, testified as an expert on orthopedic surgery, and he has examined the x-ray of Mr. Powell. (Tr. 2/13/03, Ex. G, p.2-4); he explained that the x-ray shows a break in the large bone called the tibia, and it is from a direct blow as it is a short segment (p. 5-6, Ex. G); the fracture is consistent with a foot coming into contact with the back of the leg, and this is a grade one fracture- where there is less than a monometer of opening. (p. 23, 26, Ex. G).

86.

On 2/14/03, the jury found that Mr. Powell was guilty of possession of narcotics and assault on a police officer. (Certified court judgment, Ex. K).

87.

On 4/17/03, Ex. J, the court (Hon. Martin J. Nigro) sentenced Mr. Powell.

88.

On the charge of assault of a police officer, Powell was sentenced to five years in jail followed by three years of special parole. On the charge of possession of narcotics, Powell was sentenced to three years in jail, which will run currently. The total sentence is five years followed by three years special parole. Appeal bond set at $80,000. (Tr. 4/17/03, pgs 25-26, Ex. K).

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89.

Mr. Powell's conviction is currently under appeal at the Appellate Court under the name, "State v. Powell", AC 24582. (Certified copy of appeal notice, Ex.).

90.

Mr. Powell is currently inmate number 142982, with an address of North Block 401, 900 Highland Ave, Cheshire CT 06410, Tel 203-250-2600; Counselor Gallick/Clark 203-250-2049.

THE DEFENDANTS, OF STAMFORD, et al THOMAS M. CASSONE DIRECTOR OF LEGAL AFFAIRS

CITY

BY_________________________________ James V. Minor, Assistant Corporation Counsel Bar No. CT 05963 888 Washington Blvd PO Box 10152 Stamford, CT 06904-2152 977-4087 fax 203-977-5560

CERTIFICATION I hereby certify that a copy of the foregoing was mailed postage prepaid on March 17, 2004 to the following: Larry Powell, Inmate number 142982 North Block 401 900 Highland Ave Cheshire CT 06410 Tel 203-250-2600; Counselor Gallick/Clark 203-250-2049 _____________________________________ James V. Minor

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