CSAO: Report of the State's Attorney for the Judicial District of New Haven Pursuant to Section 51-277a of the Connecticut General Statutes Re: Shooting Death of Mack N. Lucky on November 8, 2004.

Report of the State's Attorney for the Judicial District of New Haven Pursuant to Section 51-277a of the Connecticut General Statutes Re: Shooting Death of Mack N. Lucky on November 8, 2004

Submitted by:

MICHAEL DEARINGTON
State’s Attorney
Judicial District of New Haven

March 29, 2005

TABLE OF CONTENTS:

Preface | Factual Background | Forensic Processing of Shooting Scene | Forensic Science Laboratory Findings | Post-Mortem ExaminationLaw Concerning the Use of Deadly Force by a Police Officer | Conclusion

PREFACE

The following report concerning the shooting death of Mack N. Lucky, date of birth February 22, 1947, on November 8, 2004, is prepared and submitted by Michael Dearington, State’s Attorney, Judicial District of New Haven, pursuant to Section 51-277a, of the Connecticut General Statutes. The lethal shots were fired by off duty New Haven Police Officer Elliott Rosa, of the New Haven Police Department, in the elevator at the William T. Rowe Apartments, 904 Howard Avenue, New Haven, CT. The report and conclusions are based upon the investigation conducted by the Western District Major Crime Squad of the Connecticut State Police the in conjunction with the Forensic Science Crime Laboratory of the Connecticut State Police and the Office of the State Medical Examiner. This report and conclusions are based upon the interview of witnesses, observation, collection and examination of evidence from the scene and the post mortem examination performed on Mr. Lucky.

FACTUAL BACKGROUND

Officer Elliot Rosa had been a member of the New Haven Police Department as of November 8, 2004, for a period of approximately two years.

On November 4, 2004, Officer Rosa signed a residential lease agreement with the Housing Authority of the City of New Haven. Such was effective immediately for occupancy at the William T. Rose Apartments located at 904 Howard Avenue, New Haven. The facility operated by the New Haven Housing Authority provides subsidized housing for the elderly and disabled.

The lease was entered into pursuant to the "Police Officer in Residence Program." Such program fosters the placement of New Haven Police Officers in facilities similar to the William T. Rose Apartments. There are approximately fourteen such placements. Mack N. Lucky, d.o.b. 02/22/47, resided in Apartment 7N and had been a resident for six years.

On November 8, 2004, Officer Rosa made several trips to 904 Howard Avenue as he moved his belongings into his apartment on the tenth floor. About 4:00 p.m., Officer Rosa was off duty and, not in uniform. He, accompanied by his leashed 8 month old black Labrador dog, knocked on the locked rear door area. Such enters into the first floor lobby of the apartment house. Matthew McCoy, who was in the lobby area with Otis Williams and John McNeil, all employees of the Housing Authority, heard the knock and opened the door admitting Officer Rosa.

McCoy said something to the effect that dogs are not allowed in the building. (Although there is no evidence that Officer Rosa, pursuant to the written policy of the Housing Authority of New Haven, obtained permission to keep a pet on the premises, such does not effect the conclusion of this report.) Different accounts indicate that Officer Rosa did not respond or said he "could have a dog here."

Barbara Burbridge, an employee and resident who was in the lobby area advised Officer Rosa that he should obtain a key card. Officer Rosa entered an office area and shortly returned to the lobby area.

According to Ms. Burbridge, Mr. Lucky exited the laundry room carrying a bag of laundry over his shoulder. The entrance to the laundry room is next to the two elevators. At such time according to Ms. Burbridge, Mr. Lucky, upon observing Officer Rosa exit the office stated that if the dog came at me, I am going to drop the bag on his head. Officer Rosa did not respond.

Officer Rosa indicated that as he approached the elevator the person later identified as Mr. Lucky was annoyed and commented that he hated dogs and cats and such should be disallowed in the building. Officer Rosa also stated words to the effect that he was entering the elevator and Mr. Lucky "permitted me and my dog to enter." (John McNeil stated that Officer Rosa and Mr. Lucky were out of sight and he could hear them talking about something at the elevator.)

Mr. Lucky entered first and stood on the left side of the elevator facing to the front. Officer Rosa then entered with his dog and were on the right.

Officer Rosa stated to investigators that when on the elevator:

Mr. Lucky indicated that he did not want the dog anywhere near him and threateningly indicated that it better not get near him. He indicated that he would bash the dog with his bag. It was at that point that I specifically told him that I was a police officer and that he should not take any action against the dog. He quickly put down his laundry bag onto the floor of the elevator. At this point my dog was seated by my left side and on the leash.

Officer Rosa attempted to display his badge located on his shoulder holster, however, before he could do this, "Mr. Lucky moved aggressively toward me, closing the distance between us" and "he clinched his fists and basically appeared agitated by his words and actions."

Officer Rosa further indicated:

I immediately reached out with my right hand and grabbed Mr. Lucky’s left arm in the area above the elbow. I told him "don’t do this, don’t do this" and remember directing him to "step back". Mr. Lucky broke my grasp by pulling away from me and then became even more angry. He yelled "don’t fucking touch me." With his right hand he pulled out a folded knife from his right coat pocket and using both hands he immediately opened it and threatened me. It appeared to be a stainless steel blade. At this point, I began to reach for my service weapon under my coat in the shoulder holster. Mr. Lucky crouched down and lunged forward, leading with his left shoulder with the knife in his right hand. I tried blocking him with my left forearm. I pulled out my gun. It was clear to me that Mr. Lucky was attacking me with the knife and I feared for my life. I therefore fired at Mr. Lucky. To the best of my recollection, I discharged the weapon at least two times. I believe that the first shot was fired in a downward direction, while we were struggling together. I then continued to struggle with Mr. Lucky and succeeded in pushing him slightly upward and away with my forearm and leg and then discharged my weapon at least one additional time toward the center of his upper body.

Mr. Lucky was then positioned in the rear corner of the left side of the elevator. I could still observe the knife in Mr. Lucky’s hand. As I attempted to clear my jammed weapon, Mr. Lucky slowly collapsed in the corner area and dropped his knife on the floor. Believing that I cleared my weapon, I again pointed my weapon at Mr. Lucky.

It was impossible to say exactly the position of each hand other than to say that the knife remained in his right hand and that everything happened extremely fast. Again, I was not looking at my dog but never observed my small dog take any action. Again, it was clear to me that Mr. Lucky was attempting to stab me. I cannot say where exactly he intended to stab me.

His words, his actions, and the knife in his hand all indicated to me that he was attacking me. I previously described Mr. Lucky’s lunging action and my position. I hardly had an opportunity to formally engage in a "fighting stance". Again, I was not looking at my dog. I am not sure at exactly what point I specifically released the leash. I believe that I must have let go of the leash when I was attempting to retrieve my gun from my shoulder holster.

I previously described my position as it related to Mr. Lucky’s position. As described, we were facing each other. Again, I honestly was not looking at my dog, while I was struggling for what I believed to be my life. I pushed Mr. Lucky with my left arm and may have actually used both legs, in sequence, in pushing him away.

The next thing I observed was the elevator door had opened on an upper floor and my dog had partially exited the elevator. I also noticed a heavy set black female in the hallway outside the elevator. She became quite emotional and began yelling. I remained in the elevator, spoke to her briefly, retrieved my dog from the elevator doorway and immediately pushed the button for the lobby.

(Ms. Joanne Tart reported to police that she was waiting for the elevator on the seventh floor when she heard "pow-pow" coming from the elevator and thereafter the elevator door opened. A black dog ran out of the elevator toward her but was restrained when his leash caught in the elevator door. Officer Rosa was on the elevator and shouted "my dog". She then saw Mr. Lucky lying on the floor. She asked what happened and Officer Rosa said I shot him. Officer Rosa then said "don’t move" and "call 911" and the door shut.)

Officer Rosa also stated:

Not knowing the extent of Mr. Lucky’s injuries, I continued to order him not to move as the elevator descended to the lobby. Mr. Lucky remained in the same position in the elevator until he was ultimately moved by medical personnel.

As soon as the doors of the elevator doors opened in the lobby area, I yelled out to an unknown black female who was sitting at the front desk. I directed her to call 911. I also called directly to my dispatch (946-7240) to further ensure that help was on the way. I remember providing additional information regarding the discharge of my weapon.

The individuals in the lobby heard two loud noises shortly after the elevator ascended. Thereafter, the elevator descended to the lobby and the door opened. The "Time Line" prepared based upon the Security Tape of the elevators shows the elevator door closed at 4:15:28 p.m. and reopened at 4:16:32 p.m.

Officer Rosa was observed holding the door open with one hand and seen by one person holding a gun in the other hand. Mr. Lucky was observed lying on the floor. Officer Rosa yelled to Ms. Burbridge to call 911. Officer Rosa was seen talking on his cellphone and heard to say words to the effect that he pulled a knife on me so I shot him.

At around 4:20 p.m., two New Haven Fire Department Emergency Medical Technicians arrived and determined Mr. Lucky was deceased. They observed an open knife several inches next to Mr. Lucky’s right hand and two shell casings on the floor of the elevator.

New Haven Police Officers quickly arrived and the scene was secured.

The Connecticut State Police Western District Major Crime Squad at the request of th New Haven State’s Attorney’s Office responded to the scene and commenced its investigation at approximately 7:20 p.m.

FORENSIC PROCESSING OF SHOOTING SCENE

The shooting scene at 904 Howard Avenue was, at the request of the New Haven State’s Attorney’s Office processed by the experienced Western District Major Crime Squad of the Connecticut State Police.

The scene had been secured by the first responding New Haven Police officials shortly after the shooting occurred.

The Major Crime Squad remained at the scene conducting its investigation until approximately 1:00 a.m., November 9, 2004.

The processing of the scene included the photographing and videotaping of the area and evidence at the scene; the collection, documenting and examination of evidence; and interviewing of witnessing.

All of such activity was memorialized in reports.

Certain evidence was forwarded to the Department of Public Safety Forensic’ Science Laboratory for examination, testing and analysis.

Some but not all of the 35 evidentiary items collected by Major Crime Squad pertinent to the reconstruction of events leading up to the shooting, and subsequent events include:

1) Officer Rosa’s department issued Glock 17 pistol which was turned in by Officer Rosa to a New Haven Police Department official pursuant to Department Policy (Ex.1). The weapon was loaded with 15 rounds in the magazine and one in the chamber. The magazine has a capacity of 17 rounds and with one round in the chamber has a total capacity of 18 rounds.

2) Two expended brass cartridge casings, each labeled WIN 9 mm Luger, located in the elevator (Ex. 4 and 5). Such casings are consistent with the ammunition in Officer Rosa’s weapon.

3) One Ivory handled jackknife with a blade length 2 7/8" found under the right hand of Mr. Lucky in the elevator. (Ex. 7).

4.) One expended bullet which penetrated and lodged behind the panel of the south wall of the elevator 3'7" from the floor at a location behind and above the body of Mr. Lucky. It is reasonable to conclude such bullet entered and exited Mr. Lucky’s back and penetrated the panel.

5.) The upper garments worn by Mr. Lucky which included a jacket (Ex. 28) a sweatshirt (Ex. 29) and a t-shirt (Ex. 30). Such garments had bullet perforations.

The Major Crime Squad observed that the location of the perforations in the front left chest area of the clothing was consistent with the location of the bullet entry wound in Mr. Lucky’s upper left chest area.

Also, the perforations in the back of the coat sweatshirt and t-shirt are consistent with the entry and exit back wounds. The bullet entered the coat back collar, exited the collar, entered the coat and struck the victim in the back. Also, there are perforations in the clothing where the bullet exited the back and entered the elevator panel.

(See Section on Forensic Laboratory Report where findings are consistent with above observations of perforations in clothing).

The Major Crime Squad in its report concluded that:

The evidence found at the scene is consistent with the following: two (2) rounds were fired in the elevator with one (1) striking the decedent in the left side of the chest. The other bullet grazed the decedent in the back while the decedent was most likely bent forward at the waist. This bullet then penetrated the wooden panel and became lodged between the panel and the sheet metal. The order of the shots could not be determined.

FORENSIC SCIENCE LABORATORY FINDINGS

A. FIREARMS SECTION

The following items were submitted to the laboratory:

1) Officer Rosa’s Glock 9 mm. Pistol (Ex. 1) including the magazine and bullets (Ex. 3);

2) Two cartridge casings (Ex. 4) and (Ex. 5) (located on the elevator floor).

3) Bullet located behind elevator panel (Ex. 21) and

4) Bullet recovered at Post Mortem Examination (Ex. 35)

The Laboratory concluded that the casings (Ex. 4 and Ex. 5) recovered at the scene were fired from Officer Rosa’s weapon (Ex. 1). Also, the Laboratory concluded that the two bullets (Ex. 3 and Ex. 4) submitted for analysis possess class characteristics consistent with test bullets fired from Officer Rosa’s service weapon (Ex. 1) however such bullets lack "individual characteristic markings for a positive identification" as to being fired from such weapon. (Such bullets forensically speaking, could have been fired from Ex.1)

B. SCIENCE LABORATORY

The Science Laboratory received Officer Rosa’s weapon (Ex. 1) and Mr. Lucky’s jacket (Ex. 28), sweatshirt (Ex. 29) and t-shirt (Ex. 30).

The Laboratory observed on the jacket in the upper front left area one hole. Also, observed were two holes in the back collar area, one hole below the collar and a hole lower down in the back of the jacket. Similarly located holes were found in the sweatshirt and t-shirt.

The Laboratory located a particle of gunpowder and located near the periphery of the hole in the front of the jacket. Moreover, chemical test of the front and back of the jacket disclosed an nitrite particle on the periphery of the front hole and lead "bullet-wipe" residue (lead-surrounding hole) was located on the front and one hole in the back.

Based upon test firings of the weapon at different distance into nylon fabric, the Laboratory concluded that if the bullet holes in the jacket were made by Officer Rosa’s weapon then the muzzle was between 2 to 3 feet from the front bullet hole when fired and 2 or more feet from the back collar when fired.

C. FINGERPRINT SECTION

There were no identifiable latent prints found on the folding jackknife (Ex. 7).

POST MORTEM EXAMINATION

A postmortem examination was performed by Dr. Edward McDonough, Deputy Chief Medical Examiner, on Mack N. Lucky, at the Office of the Chief Medical Examination, Farmington, Connecticut on November 9, 2004, commencing at 12:05 p.m.

The cause of death was determined to be a gunshot wound to the chest.

The external and internal examination of Mr. Lucky revealed a gunshot entry wound in the upper left chest (12 inches from to top of the head and 5 1/4 inches left of the midline). The bullet track was from front to back and left to right. The bullet passed thru the upper left lobe of the lung, the aorta and the lower right lobe of the lung.

The bullet was located in the subcutaneous tissue in the right back (12 ½ inches from the top of the head and 6 1/4 inches right of the midline). This injury caused Mr. Lucky’s death.

The bullet was recovered and turned over to police authorities.

A bullet entry wound was located in the upper back (9 3/4 inches from the top of the head and 5/8 inches to the right of the midline). The bullet traveled in a subcutaneous path for 2 ½ inches and exits (10 3/4 inches from the top of the head and 3 inches right of the midline). The track is left to right and downward. The bullet was not recovered at the autopsy.

No powder residue was found incident to either entry wound.

Toxicological test performed at the Office of the Chief Medical Examiner revealed ethanol in the brain at a concentration of 0.27% and in the blood at a concentration of 0.35%.

Mr. Lucky’s injuries were photographed.

LAW CONCERNING USE OF DEADLY PHYSICAL FORCE BY A POLICE OFFICER

Connecticut General Statutes Section 53a-22 authorizes the use of deadly physical force by a police officer under certain circumstances. Section 53a-22( c) provides, in pertinent part:

(c) A peace officer or authorized official of the department of correction is justified in using deadly physical force upon another person for the purposes specified in subsection (b) of this section only when he reasonably believes such to be necessary to: (1) Defend himself or a third person from the use or imminent use of deadly physical force;

The United States Supreme Court has sanctioned the use of fatal force in such self defense situation and found such use of force to be reasonable. See Tennessee v. Garner, 471 U.S. 1 (1985).

The United States Supreme Court has indicated:

The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Graham v. Connor, 490 U.S. 386, 396 (1989).

Also, in Graham, the Court stated that:

The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation. Supra, p. 396-397.

Also;

(T)he "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Supra, p. 397.

Thus, the subjective intention of an officer whether "good" or "evil" is not the measure in analyzing the reasonableness of an officer’s conduct.

Also, an officer’s actions may be found reasonable even where "officers of reasonable competence would disagree" on the issue. Malley v. Briggs, 475 U.S. 335, 341 (1986).

As to the rules prescribed in Graham v. Connor:

Numerous courts have interpreted Graham as requiring substantial deference to the on-scene judgments made by police officers. Russo v. U.S., 37 F.Supp. 2d 450, 455 (E.D. Va. 1999).

In assessing the propriety of an officer’s use of fatal force:

(M)ost courts limit the inquiry to the information known by the officer at the time of the shooting . . . and . . . to limit relevant evidence to police officer’s actions "immediately prior to the shooting." Russo v. U.S. at p.455.

Also, it has been held that an inquiry into an officer’s actions is limited to whether the officer acted reasonably and not to whether the officer had a less intrusive or invasive alternative available.

Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. In the heed of battle with lives potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead, he would need to ascertain the least intrusive alternative (an inherently subjective determination) and choose that option and that option only. Imposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment. Scott v. Henrich, 34 F.3d. 1498 (9th Cir. 1994).

In the best of all worlds, because a human life is so precious, an officer ideally, when confronted with the threat of deadly force, should take the time to dispassionately analyze the parameters of the threat and measure his or her response to that a minimum amount of force is utilized and a minimum amount of injury is inflicted.

However, police officers are trained that in reality, the ideal situation rarely, if ever, exists.

(S)tatistics reveal that about 90 percent of shooting incidents take place within a three-second time frame. Within this time frame, a police officer takes appropriate steps to stop the threat and rarely, if ever, engages in a decision making process about his intent or the degree of injury that will be inflicted. The realistic motivation is primarily reactive and designed to stop the threat or the aggressive behavior.

Attempts to shoot to wound or to injure are unrealistic and because of high-miss rates and poor stopping effectiveness can prove dangerous for police officers and others. International Association of Chiefs of Police National Law Enforcement Policy Center., "Use of Force", Concepts and Issue Paper, February 1, 1989. P. 4.

Accordingly, our law only requires that a police officer must only react reasonably under the quickly evolving circumstances.

CONCLUSION

The account given by Officer Rosa as to the events leading up to the tragic shooting of Mack N. Lucky, the shooting itself, and subsequent events is corroborated by the statements taken, evidence seized, examined and forensically analyzed, and the postmortem examination findings.

It is clear that Mr. Lucky was agitated by the presence of Officer Rosa’s dog in the lobby. Moreover, it is reasonable to assume that such emotional state continued when Mr. Lucky, officer Rosa and his dog entered the elevator. Once in the elevator Officer Rosa stated that Mr. Lucky became more aggressive. He uttered words to the effect that the dog better stay away from him or he would hit the dog over the head with his laundry bag. Officer Rosa stated Mr. Lucky came at him and he pushed him back Mr. Lucky said "don’t fucking touch me." Mr. Lucky then pulled out and opened a folding knife and held it in his right hand. Officer Rosa stated that he had previously told Mr. Lucky he was a police officer.

The evidence is consistent with Officer Rosa’s statements as to the movement of Mr. Lucky and his pulling out and opening up of the folding jackknife.

Although there are no identifiable prints on the knife it makes sense that it belonged to Mr. Lucky. He was known to carry a folding knife and the weapon was found under his right hand. There is no evidence which suggest that it belonged to Officer Rosa.

Moreover, since Mr. Lucky was seen only carrying his laundry bag when as he entered the elevator it is reasonable to conclude, as stated by Officer Rosa, that after he placed his laundry bag on the floor of the elevator he drew the knife. While holding the knife he, in angry tones said something to the effect of "having something for" Officer Rosa. Officer Rosa stated that he believed that Mr. Lucky "was attempting to stab" him.

Officer Rosa stated that as he reached for his weapon "Mr. Lucky crouched down and lunged forward, leading with his left shoulder, with the knife in his right hand." Officer Rosa attempted to block Mr. Lucky’s charge and then fired a shot.

The Medical Examiner observed a superficial entry wound, a 2 ½ subcutaneous track, and an exit wound on Mr. Lucky’s back. The bullet was located behind the elevator panel behind where Mr. Lucky was found. The bullet entered the panel at a height of 3'7" above the floor.

It is difficult to forensically reconstruct the position of Officer Rosa and Mr. Lucky in such a situation. However, the above findings are consistent with Mr. Lucky’s back being bent forward, as concluded by the Major Crime Squad, when the shot was fired as Mr. Lucky moved, coming out of a crouched position, toward Officer Rosa. Officer Rosa stated he believed "that the first shot was fired in a downward direction, while we were struggling together."

Officer Rosa stated that he, after the first shot and while struggling, pushed him up and away and fired a second shot. The location of an entry wound in the upper front chest area is consistent with this account.

The death of Mr. Lucky is tragic. His conduct leading up to the shooting is inexplicable and reportedly out of character for him. Although the amount of alcohol in his system is substantially greater than the level necessary to be guilty of driving under the influence it is at best speculative as to how much, if at all, it influenced his conduct around the time of the shooting. Also, the question will always remain as to whether another officer could have handled the situation differently and thereby spared Mr. Lucky’s life. For instance, should Officer Rosa have brought the dog on the premises and having done so, it can be argued that it was inadvisable for Officer Rosa to enter the elevator with Mr. Lucky knowing his state of mind. However, an officer’s actions may be found reasonable even where "officers of reasonable competence would disagree" on the issue. Malley v. Briggs, 475 U.S. 335, 341 (1986).

Based upon the applicable law and the information available, it is concluded that Officer Rose’s use of deadly force in causing the death of Mack N. Lucky on November 8, 2004, was both reasonable and justified pursuant to Section 53a-22 of the Connecticut General Statutes. Officer Rosa was confronted with a knife with a blade of 2 7/8" length. Such clearly can inflict fatal injury. Moreover, Officer Rosa had no ability to retreat in the enclosed area.

Officer Rosa was forced to make a split second decision when set upon by a person who knew he was a police officer and was holding a knife while acting irrationally.

It is not without significance that no one including Officer Rosa indicated the dog was acting aggressively toward anyone prior to the shooting.

Officer Rosa, as provided by statute, was justified in defending himself "from the use of imminent use of deadly physical force."



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