State v. Bissonette, 83-422

• Decision Date: 01 February 1985
• Docket Number: No. 83-422,83-422
• Citation: 145 Vt. 381,488 A.2d 1231
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Ralph BISSONETTE, Jr.

Page 1231

488 A.2d 1231

145 Vt. 381

STATE of Vermont v. Ralph BISSONETTE, Jr.

No. 83-422.

Supreme Court of Vermont.

Feb. 1, 1985.

John J. Easton, Jr., Atty. Gen., Edwin L. Hobson and Robert V. Simpson, Jr., Asst. Attys. Gen., Montpelier, and Jennifer Rood, Law Clerk (on brief), for plaintiff-appellee.

Jarvis & Kaplan, Burlington, for defendant-appellant.

Before HILL, UNDERWOOD, PECK and GIBSON, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

GIBSON, Justice.

Defendant appeals his conviction, under 13 V.S.A. § 2002, of obtaining money or other property by false pretenses. We affirm.

Viewed in the light most favorable to the State, State v. Lupien, 143 Vt. 378, 381 466 A.2d 1172, 1174 (1983), the evidence establishes the following facts: Mrs. Clara Carlson, age 93, shared her South Burlington home with her sister, Mrs. Nellie Irish, age 87. On July 6, 1982, the roof of her home was in good repair. That evening a truck drove up and parked nearby. A watchful neighbor saw three men emerge from it, including one whom he recognized as Norman Bevins. When the men disappeared up Mrs. Carlson's driveway, the neighbor called the police, but the men soon reappeared and drove off.

The following morning, another neighbor noticed several shingles missing from Mrs. Carlson's roof that had not been missing the day before. That morning, three men including the defendant and Norman Bevins visited the house and falsely stated that they had been working across the street and had noticed shingles missing from her roof. They said that immediate repair was necessary. Mrs. Irish told the men that no work could be done without the approval of Helen Lawrence, a younger woman who helped supervise the women's affairs and who had power of attorney for Mrs. Carlson. Mrs. Irish telephoned Mrs. Lawrence and repeated the men's recommendations, but Mrs. Lawrence refused to allow the men to make the repairs. She told Mrs. Irish to seek additional bids.

After Mrs. Irish hung up and informed the men of Mrs. Lawrence's instructions, they asked to speak directly to Mrs. Lawrence, so Mrs. Irish dialed Mrs. Lawrence again and handed the phone to defendant. Mrs. Lawrence's end of the line then went dead, but at the Carlson home, in the presence of the two sisters, defendant pretended to discuss the repair with Mrs. Lawrence. He eventually hung up and falsely stated that Mrs. Lawrence had approved the work. Thereupon, Mrs. Carlson said, "all right," and went for her pocketbook. Mrs. Irish explained to her older sister that the men wanted $1800, which required a trip to the bank. Mr. Bevins drove the women to the bank, where, at his instruction, a certified check drawn to "James Blackmer" was issued. The check was given to Mr. Bevins and cashed later that day.

The State contended that defendant and his companions used Blackmer's name and driver's license in obtaining and cashing the check. The jury apparently disbelieved testimony by the real James Blackmer (a brother-in-law of Norman Bevins) that he alone had randomly driven down Mrs. Carlson's street, noticed her missing shingles, sought the job, done the work along with two strangers whom he hired for a few hours and never saw again, and then cashed the check.

I.

Defendant first challenges the identification procedure by which, before trial, an array of 27 photographs was presented to several witnesses. The photographs were shown to Mrs. Irish one at a time, rather than all at once, and she identified defendant in the sixth picture shown to her. Thereafter, at trial, she identified defendant again as he was seated with counsel. Defendant argues that, considering the inherent unreliability of photo arrays, United States v. Ash, 461 F.2d 92, 103 (D.C.Cir.1972), reversed on other grounds, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), the court should have suppressed the photo array and refused to permit the in-court identification by Mrs. Irish.

The test established by the United States Supreme Court to determine the admissibility of out-of-court identifications mandates assessment of "the totality of the circumstances" in deciding whether the procedure was unnecessarily suggestive and thereby conducive to irreparable mistaken identification. Manson v. Brathwaite, 432 U.S. 98, 106, 114, 97 S.Ct. 2243, 2249, 2253, 53 L.Ed.2d 140 (1977); see also Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968) (similar ad hoc determination for pretrial photographic identification procedures).

Three grounds for suppression of the identification were raised below by defendant and preserved on appeal. He claims first that all photographs except those of himself and his co-defendants were of young men. He also argues that confusion displayed by Mrs. Irish during cross-examination at the suppression hearing tainted the identification. Finally, he contends that the procedure employed in displaying the photographs was unnecessarily suggestive, and thereby conducive to irreparable mistaken identification.

On the age issue, the trial court disagreed with defendant's contention that defendant stuck out "like the proverbial sore thumb." The 27 photographs comprising the photo array depict men both younger and older than defendant as well as men both with and without beards and mustaches. See United States v. Gantt, 617 F.2d 831, 840 (D.C.Cir.1980) (rejecting argument that defendant "was the only one of the six shown ... which even remotely possessed the physical characteristics of the suspect"). We conclude, upon review, that the evidence does not support defendant's contention and that, therefore, the trial court's finding was not erroneous.

Defendant's second argument, that Mrs. Irish was confused while testifying, may provide ammunition for cross-examination during trial, but it is not germane to the test set forth in Manson, supra, for admission of pretrial identifications. Among the factors to be weighed is "the level of certainty demonstrated at the confrontation." Manson, supra, 432 U.S. at 114, 97 S.Ct. at 2253 (emphasis supplied). Mrs. Irish's emphatic identification of defendant at the time she viewed the photographs was not refuted. Defendant's objection is more properly addressed to the weight of the evidence, not its admissibility. See id. at 116, 97 S.Ct. at 2254. The trial court properly overruled the objection.

Defendant's last argument, that the sequential presentation of photographs, in which Mrs. Irish identified one of the three individuals (Bevins) in the third picture of the 27 to be shown, and then identified defendant in the sixth one presented, made defendant part of what was in effect a three-person lineup, and was unnecessarily suggestive, and thereby conducive to irreparable mistaken identification, also fails. The trial court found that, although the photographs were shown one at a time, there was no evidence that the officer made any suggestions emphasizing one photograph over another. The court concluded that there was no substantial difference between showing one photograph at a time and showing all 27 at once, and it concluded that the process was not suggestive.

In the case of United States v. Bubar, 567 F.2d 192, 197 (2d Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977), the United States Court of Appeals for the Second Circuit, in dictum, observed that the process of presenting one-by-one a series of photographs possessed the characteristics of both a constitutionally permissible spread and a potentially impermissibly suggestive procedure. In Smith v. Estelle, 531 F.2d 260 (5th Cir.1976), the victim was shown four photographs, then several days later shown a fifth photograph in which she definitely identified the defendant; the court held that, while the photographic identification procedure might have been handled more carefully, it was not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Id. at 262 (quoting Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971).

While we agree that, in an array, the attention paid by a witness to one photograph in disregard of others is uncontrolled, we disagree that what occurred in this case was in effect a three-person, or even a six-person, array. Defendant has not shown, even hypothetically, how sequential rather than simultaneous presentation is per se unnecessarily suggestive, or even more suggestive, than a "spread." He cites no authority for his argument. We affirm the trial court's conclusion that the procedure was not impermissibly suggestive.

II.

Defendant next contends that the court erroneously denied his motion for acquittal, claiming there is no evidence of any false statement made by him on which Mrs. Carlson actually relied. The evidence is to the contrary.

In addition to uttering falsehoods regarding the job across the street and the need for immediate repair, the evidence establishes that defendant pretended to talk with the woman whose approval was needed and then misrepresented her approval. In immediate response to that misstatement, Mrs. Carlson went to the bank and withdrew money from her account. There can be no doubt that the victim acted in reliance on defendant's falsehoods.

Defendant maintains that it was not defendant's pretended phone conversation, but the directions given by Mrs. Irish to Mrs. Carlson after defendant said Mrs. Lawrence had approved the work, that induced Mrs. Carlson to part with her money. He cites several Texas decisions under former Texas statutes as support for the proposition that proof of reliance solely upon the false pretense is necessary for conviction. Ashford v. State, 410 S.W.2d 433, 434 (Tex.Crim.App.1966); see also Kinder v. State, 477 S.W.2d 584, 586 (Tex.Crim.App.1971); Cleveland v. State, 438 S.W.2d 807, 808 (Tex.Crim.App.1969); Thornton v. State, 171 Tex.Crim. 565, 567, 352 S.W.2d 742, 743 (Tex.Crim.App.1962). These...