State v. Amarillo

Decision Date14 January 1986
Citation503 A.2d 146,198 Conn. 285
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Jairo AMARILLO.

Stephen F. Donahue, with whom, on brief, was Elaine M. Skoronski, Bridgeport, for appellant (defendant).

David S. Shepack, Deputy Asst. State's Atty., with whom, on brief, were Eugene J. Callahan, State's Atty., Judith Rossi, Sp. Asst. State's Atty., and Bruce Hudock and John M. Massameno, Asst. State's Attys., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

SHEA, Justice.

The defendant, Jairo Amarillo, was convicted, after a trial to a jury, of sexual assault in the first degree in violation of General Statutes § 53a-70(a); 1 kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A); 2 and robbery in the third degree in violation of General Statutes § 53a-136. 3 From this judgment the defendant appeals, asserting numerous claims of error relating to (1) the sufficiency of the evidence; (2) the victim's identification of him; (3) the allegedly improper police identification techniques; (4) the trial court's charge to the jury; (5) the trial court's denial of his motion to dismiss; and (6) the trial court's refusal to accept the defendant's plea under the Alford doctrine; North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). We find no error.

I

The defendant claims that his motion for judgment of acquittal should have been granted because there was insufficient evidence to prove that he was the perpetrator of the crimes charged. We find no error in the trial court's denial of this motion.

From the evidence adduced at trial the jury could have reasonably found the following facts: On January 31, 1982, the victim stopped for ice cream at a store in Port Chester, New York. As she was sitting in her car eating ice cream, the defendant brandished a knife and forced his way into the car. He pushed the victim over to the passenger seat and locked the car door. Leroy Frost, a patron in the ice cream store, witnessed the entire incident, yet did not attempt to intercede. The defendant then drove to a restaurant in Greenwich, Connecticut, parked behind it and kissed the victim against her will. In fear for her life, the victim asked the defendant if he wanted any money. Still holding the knife, he responded, "sure, give it to me." She gave him about three dollars. The defendant then drove to Putnam Green Apartments in Greenwich. In the parking lot, the defendant again threatened the victim with the knife and demanded that she take off her coat and shirt. He then touched her breasts and forced her to perform fellatio on him. After the incident, the defendant drove back to Port Chester and exited the car on a main street near two local taverns, pleading with the victim not to report the incident to the police.

In reviewing a sufficiency of the evidence claim, " 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S.Ct. 1620, 1624, 32 L.Ed.2d 152 (1972) ].' " (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, reh. denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); see State v. Morrill, 197 Conn. 507, 513, 498 A.2d 76 (1985); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984).

With respect to the sufficiency of the evidence, the defendant argues that the identifications by the victim and by the witness, Frost, were inadequate to counteract his alibi, especially in the absence of corroborative physical evidence. The defendant misperceives our function in reviewing claims questioning the sufficiency of the evidence. This court does not retry the case or evaluate the credibility of the witnesses. The resolution of conflicting testimony is the province of the jury. State v. Martin, 189 Conn. 1, 9, 454 A.2d 256 (1983). The victim testified that she was absolutely certain that the defendant was her assailant. Frost, the eyewitness to the initial abduction, made an in-court identification of the defendant. Any prior misidentifications or conflicting descriptions of the defendant were reasonably resolved by the jury against the defendant. The evidence was sufficient to support the jury's conclusion that the defendant was the victim's assailant.

The defendant also argues that the evidence was insufficient to establish that he had engaged in "sexual intercourse" with the victim. Under General Statutes § 53a-65(2), penetration, however slight, is required to commit sexual intercourse by fellatio. See State v. Kish, 186 Conn. 757, 765, 443 A.2d 1274 (1982). The victim testified at trial that he "forced my mouth onto his penis and had me perform fellatio about three times." The victim's mother also testified that shortly after the assault her daughter told her that "he put his penis in [my] mouth." The evidence, viewed in a light most favorable to sustaining the verdict, could reasonably have allowed the jury to find that penetration had occurred.

II

The defendant also claims that the trial court erred in denying his motion to suppress the victim's identification of him. He challenges the show-up identification procedures used by the police and claims that the suggestive procedures tainted the in-court identification. 4 We examine this claim in the context of these additional facts: When the victim returned home after the attack, she was crying and told her mother of the incident. Later that night, after her mother had notified the police, the victim returned to Port Chester with a member of the Greenwich police department. The victim initially described her assailant as a light-skinned black man, with a mustache, wearing a hat, a blue jean jacket, a white sweater and blue jeans. Upon her arrival, a sergeant with the Port Chester police department suggested that she accompany him to two local taverns, Romando's and the Canary Bar, both in close proximity to the location where the assailant had left her car. The victim had told the officer that her assailant was walking toward the taverns when he left her car. The officer entered the Canary Bar and discovered the defendant, who closely matched the description of the assailant. The victim then entered the Canary Bar and identified the defendant, the sole patron in it, as her attacker. The defendant was then arrested. Later, at the Port Chester police station, the victim again identified the defendant as her attacker after viewing him alone in a room with a uniformed police officer. She recognized him immediately and was certain that "he was the same guy ... he was wearing the same clothes--I will never forget his face." Finally, in court, in addition to testifying as to the two previous identifications, the victim positively identified the defendant as her assailant.

In order to determine whether identification procedures violate the defendant's due process rights, it must be determined (1) whether the identification procedure was impermissibly and unnecessarily suggestive, and (2) if so, whether the identification was nevertheless reliable based upon an examination of the totality of the circumstances. State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985); State v. Hinton, 196 Conn. 289, 292-93, 493 A.2d 837 (1985); State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985); State v. Hamele, 188 Conn. 372, 376, 449 A.2d 1020 (1982); State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); see also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199-201, 93 S.Ct. 375, 382-83, 34 L.Ed.2d 401 (1972).

The defendant argues that the first identification at the Canary Bar was impermissibly suggestive because he was the only patron in the bar at the time and because the police prompted the victim to enter the bar. He claims that this amounted to a one-on-one "show-up" identification that violated his due process rights. See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Although such an identification procedure may be inherently and significantly suggestive because it often conveys the message that the police have reason to believe the suspect guilty; State v. Dupree, 196 Conn. 655, 667, 495 A.2d 691 (1985); State v. Guertin, 190 Conn. 440, 456, 461 A.2d 963 (1983); State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976); it was not impermissibly suggestive in this case.

Unlike other cases where an individual already in police custody is clearly presented to the victim as a possible suspect, the defendant in this case was identified in a public place and was not then in police custody. The police officer had found in the bar he entered, in close proximity to where the victim had last seen her assailant, an individual who closely matched the description he had received. Although the police may have suspected that the defendant was the perpetrator, it is doubtful that they could, constitutionally, have detained him in order to prepare a line-up identification for the victim. Therefore, although the victim believed that she was entering the bar to view a possible suspect, she was not presented with the defendant in a manner suggesting that the police believed him to be her assailant. The defendant was viewed having a beer in a public place. The police officer escorted the victim into the bar, but he did not direct any attention to the defendant nor ask the victim any questions concerning the defendant. As the victim must have realized, the only reason she was requested to enter the bar was its proximity to the place where she had left the assailant and her own description...

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