State v. Anderson
| Decision Date | 10 July 1979 |
| Citation | 178 Conn. 287,422 A.2d 323 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Milton E. ANDERSON. |
Richard Emanuel, Asst. Public Defender, with whom, on the brief, were James D. Cosgrove, Chief Public Defender, and Enrico Vaccaro, Asst. Public Defender, for the appellant (defendant).
Robert E. Beach, Jr., Asst. State's Atty., for the appellee (state).
Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and ARMENTANO, JJ.
The defendant was charged in a two-count information on March 29, 1974, with robbery in the first degree in violation of General Statutes § 53a-134(a)(2) and with larceny in the third degree in violation of General Statutes § 53a-124(a)(1). Following a trial to the court, the defendant was found not guilty of robbery in the first degree but guilty of robbery in the second degree on the first count, and guilty of larceny in the third degree on the second count. From this judgment, the defendant has appealed.
The finding as corrected is as follows: David Blasco, the state's key witness, was in charge of a Cumberland Farms store in Cromwell on January 30, 1974, when, at approximately 8 p. m., two men entered the store. One of them brandished a small automatic gun and stated that it was a holdup. The person holding the gun hit Blasco on the side of the head and ordered him to open the safe or else he was going to split his skull. Blasco then opened the safe and handed over $250. At trial, Blasco identified the defendant in court as the man who hit him.
The court found that Blasco had seen in his store on January 14, 1974, the two men who had robbed him. They were there for about five minutes but became nervous and left when other people came in. Shortly thereafter, a customer from another Cumberland Farms store in Cromwell came into Blasco's store and told him the other store had been robbed. He gave a description of the robbers to Blasco. Blasco told him that it seemed to fit the two men who had recently left his store. A policeman, Trooper Jules B. Lloyd, arrived at Blasco's store by mistake; he thought it was the one that had been robbed. Blasco told him that he thought the same people who robbed the other store had been in his store.
Within a day or two of the January 14 robbery, Blasco was shown six photographs by the police. He identified the defendant as one of the two people who had been in his store. His wife, Linda Blasco, who had been in the store at that time, was shown the same set of six photographs. She also identified the photograph of the defendant as one of the two persons who had been in the store on January 14. Her identification was independent of that of her husband's.
After the January 30 robbery of his store, Blasco was shown the same set of photographs and he again identified the defendant. He told the police that one of the robbers was the same person he had identified previously in connection with the January 14 robbery. Five of the photographs had pieces of paper pasted on the front to cover up the information concerning where the photographs had been taken.
The defendant was presented in the Circuit Court in Middletown on February 26, 1974, for a probable cause hearing. At the time Blasco identified the defendant as one of the two persons who had robbed him on January 30, 1974.
On appeal the defendant has raised three claims of error: (1) the corporeal identification procedure used denied him of his constitutional rights; (2) the photographic identification procedure employed was unnecessarily suggestive and deprived him of due process of law; and (3) robbery in the second degree is not a lesser included offense of robbery in the first degree.
The defendant's first assignment of error is that the corporeal identification made by the state's key witness deprived him of the effective assistance of counsel. The defendant claims that at the probable cause hearing held on February 26, 1974, Blasco, the state's key witness, was brought into a courtroom where the defendant was seated for the purpose of identifying the defendant as the perpetrator of the offenses in question. At the probable cause hearing, Blasco testified that prior to the hearing he had gone into the courtroom to make the identification at the request of the prosecution. Counsel for the defendant was not present at that time and the defendant was the only black person in the room. The defendant asserts that this one-on-one type of confrontation is constitutionally impermissible under Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977). The defendant admits in his brief that this claim was not raised below, either at the hearing on the motion to suppress 1 or at the trial itself. The defendant asserts, however, that the necessary factual foundation to support this constitutional claim may be found in the transcript from the February 26, 1974, probable cause hearing. What the defendant is proposing is that this court should determine the factual issues involved here and then decide upon the facts which we find whether the identification in question violated the dictates of Moore v. Illinois, supra. We cannot do this even though the defendant raises a constitutional issue that fits within the ambit of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), because there is no factual backdrop against which we may weigh the defendant's claim. "This court cannot find facts, nor, in the first instance, draw conclusions of facts from primary facts found, but can only review such findings to see whether they might legally, logically and reasonably be found." State v. Clark, 160 Conn. 555, 556, 274 A.2d at 451 (1970).
The defendant next contends that the trial court erred in denying his motion to suppress the photographic identification. The defendant's claim is that the photographic identification procedure employed was impermissibly suggestive and that the court erred in finding that the in-court identification had an independent basis. As previously stated, the victim was shown six photographs on two occasions, once after the first Cumberland Farms robbery and the second time right after the store in which he was working had been robbed. The only difference among the six photographs was that there was writing on the back of one of them. Blasco was not shown the backs of the photographs. The photograph with writing on the back was not the one chosen by the witnesses. Further, the court found that there was no hesitancy in Blasco's identification.
The standard to be applied in this situation is well established. "(C) onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); State v. Williams, 173 Conn. 545, 552, 378 A.2d 588 (1977); State v. Kinsey, 173 Conn. 344, 346-47, 377 A.2d 1095 (1977).
In Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), the United States Supreme Court stated that "reliability is the linchpin in determining the admissibility of identification testimony." The court then reiterated the factors that were discussed in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and applied them to the photographic identification situation. They are: (1) the opportunity to view; (2) the degree of attention of the observer; (3) the accuracy of the description; (4) the witness' level of certainty; and (5) the time between the crime and the confrontation. Manson v. Brathwaite, supra, 432 U.S. 114-16, 97 S.Ct. 2243. The court in the present action found that the procedures employed in showing the same six photographs on two occasions were "not necessarily suggestive." Moreover, the court found that Blasco had a sufficient opportunity on January 14 and again on January 30 to view the defendant to make an independent in-court identification. Linda Blasco also had a sufficient opportunity on January 14 to make an independent identification. Based on the findings, it is obvious that the trial...
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