State v. Austin

• Decision Date: 19 March 1985
• Citation: 488 A.2d 1250,195 Conn. 496
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Richard AUSTIN.

Page 1250

488 A.2d 1250

195 Conn. 496

STATE of Connecticut v. Richard AUSTIN.

Supreme Court of Connecticut.

Argued Jan. 11, 1985.

Decided March 19, 1985.

John J. Kindl, for appellant (defendant).

Roland D. Fasano, Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (state).

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

SHEA, Associate Justice.

A jury found the defendant guilty of sexual assault in the first degree and also of two counts of robbery in the first degree. In his appeal from the judgment the defendant has raised two issues: (1) whether the identification testimony of one of the victims should have been suppressed because of the claimed suggestiveness of the photographic identification procedure followed by the police; and (2) whether General Statutes (Rev. to 1981) § 51-61, which excused court reporters from recording the arguments of counsel in the absence of a request, interfered with the right of the defendant to the effective assistance of counsel on appeal and to a fair trial. We resolve both of these questions against the defendant and find no error.

Soon after midnight on June 21, 1980, two women student nurses, S and J, left the Yale-New Haven Hospital in New Haven and drove to the apartment of one of them, arriving at about 12:20 a.m. While they were sitting in the car parked in the apartment driveway, a man opened the passenger side door of the car and said, "Good evening." When both women exited from the driver's side door to go to J's apartment the man pulled out a small gray gun and directed them to get back into the car. S then handed him her wallet, but he repeated his command, and both women returned to the front seat of the car. The assailant got into the back of the car and demanded J's purse, which was handed to him. After examining the contents of the wallet and purse, the man ordered S to get into the back of the car where he directed her to perform fellatio upon him. When this had been accomplished, the assailant left the vehicle, telling the women to remain and to lie down on the seats.

A few minutes later the victims got out of the car and went into the apartment of a neighbor, who called the police. Within minutes a police officer arrived and, with the victims, drove around the area looking for suspects, to no avail. S and J were then taken to the police station where, after having examined a large number of photos contained in the police file, they separately identified photographs of the defendant as those of their assailant. At the trial, both victims made in-court identifications of the defendant as the man who had accosted them on June 21, 1980, and evidence of their independent out-of-court photographic identifications was also admitted.

I

The defendant on appeal confines his claim that the identification of the defendant should have been suppressed because of undue suggestiveness to the testimony of S, the victim of the sexual assault. As mentioned, S and J each made their photographic identifications of the defendant at the police station out of the presence of the other.

After arriving at the police station about 1:30 a.m., S was given a tray containing about fifty to seventy-five "mug-shot" photographs, approximately 80 percent of which showed black males, such as the defendant. She told the police that none of the photographs in the first tray showed the assailant but indicated that three of them displayed characteristics similar to those of the assailant. At that point, the investigating officer, in the presence of S, told someone outside the room to bring in another tray of photographs and to "put Richard Austin's picture in it." The name of the defendant, Richard Austin, was not then of any significance to S nor did the officer say anything as to the reason for including the requested photograph. When the second tray was brought into the room, S went through the photographs until, about halfway in her examination, she selected a 1974 picture of the defendant as that of her assailant. She said she was positive of her selection, and the particular photograph identified was signed by her and by two police officers.

A third tray was then prepared in accordance with the instruction of the investigating officer to put a more recent photograph of the same man in it. This tray was assembled outside the room where S remained, but the officer's instruction was given in her presence. From this tray, S selected a 1980 photograph of the defendant, which she and two officers then also signed.

On October 15, 1980, S again was requested to come to the police station, because the original photographs she had identified could not be found. A board containing twelve photographs was shown to her and she selected again a photograph of the defendant. The two missing photographs that had been selected by S originally were subsequently found and these, as well as the board containing the photograph of the defendant picked out on October 15, 1980, were introduced in evidence at the trial.

"In determining whether identification procedures violate a defendant's due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the 'totality of the circumstances.' " State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); see Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). In respect to the first inquiry, the state suggests no useful purpose served by the comments of the police that the defendant claims to have been suggestive or any other justification for them, such as exigent circumstances. See Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). If they were indeed suggestive, therefore, it follows that they were unnecessarily so. To the extent that some degree of suggestiveness may have been inherent in the police remarks, the crucial inquiry relates to its impact upon the overall reliability of the identifications made by S upon each occasion.

The suggestive element claimed in the initial identification procedure was the officer's direction in the presence of S to put "Richard Austin's picture" in the second tray of photographs to be examined. The defendant contends that this remark was similar to informing a witness that a suspect is included in an array of photographs or in a line-up, a practice which has been condemned as unduly suggestive by several courts. Sawyer v. State, 260 Ind. 597, 298 N.E.2d 440 (1973); State v. Wallace, 285 So.2d 796 (La.1973); State v. Classen, 285 Or. 221, 590 P.2d 1198 (1979). "The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime." Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). "A witness may thus be lead [sic] to feel that he has an obligation to choose one of the participants in the display since the police evidently are satisfied that they have apprehended the criminal. The result may be that the witness strains to pick someone with familiar characteristics or someone who most resembles the actual criminal or the result may be that the witness will choose the one least dissimilar by the process of elimination." Sawyer v. State, supra, 260 Ind. 602, 298 N.E.2d 440. A statement of the police that a suspect is included in the photographic array or in a line-up should be considered in determining whether it was unduly suggestive, but little harm is likely to arise where the witness, even without the police comment, would have inferred that the occasion for his being requested to identify someone is that the police have a particular person in mind who has been included among those to be viewed. United States v. Gambrill, 449 F.2d 1148, 1151 n. 3 (D.C.Cir.1971); see Martinez v. Turner, 461 F.2d 261, 264 (10th Cir.1972).

Although the direction of the officer to include a photograph of Richard Austin in the second tray of mugshots seen by the victim S was an unnecessarily suggestive element in the identification process, it did not rise to the level of suggestiveness considered in the cases relied upon by the defendant, where the police had indicated that one of the persons to be viewed was a "suspect" or was implicated by other evidence. Since the reference to the defendant followed her review of the first tray and her designation of three photos exhibiting characteristics of the assailant, S could reasonably have inferred only that a mug-shot showing some of the characteristics she had mentioned would be included in the second tray. She did inquire, upon hearing the officer's remark, who Richard Austin was and why his photo was to be included, but no response was given to this question. The name meant nothing to her, nor did the mug-shot she selected from the second tray contain this name or any other markings distinguishing it from the other photographs. The fact...