State v. Carnegie

• Decision Date: 03 June 1969
• Citation: 158 Conn. 264,259 A.2d 628
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Patricia CARNEGIE.

Page 628

259 A.2d 628

158 Conn. 264

STATE of Connecticut v. Patricia CARNEGIE.

Supreme Court of Connecticut.

June 3, 1969.

Certiorari Denied Dec. 15, 1969. See 90 S.Ct. 488.

David M. Reilly, Jr., New Haven, with whom was Anthony J. Lasala, New Haven, for appellant (defendant).

David B. Salzman, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Robert K. Walsh, Asst. State's Atty., for appellee (state).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

THIM, Associate Justice.

A jury found the defendant guilty of forgery in violation of § 53-346 of the General Statutes and of obtaining money by false pretenses in violation of § 53-360 of the General Statutes. The principal issue on this appeal is whether an in-court identification of the defendant was based on a pretrial identification which was claimed to have been made in a manner violative of due process of law.

The defendant has assigned error in the finding and seeks to have this court incorporate several paragraphs of the draft finding into the finding. In a jury case, a finding serves the limited purpose of setting forth such of the facts as are needed in order fairly to test the rulings of the court and the correctness to the charge. Practice Book § 635; Morgillo v. Evergreen Cemetery Assn., 152 Conn. 169, 172, 205 A.2d 368. No corrections can be made to the finding which would benefit the defendant in presenting the questions of law which she wishes to have reviewed by this court.

I

It is the defendant's claim that the trial court committed error by refusing to strike evidence of a bank teller's identifications of the defendant as the woman who had cashed a forged check. This claim is premised on the contention that a pretrial confrontation between the identifying witness and the defendant at the New Haven police station was so suggestive and unfair as to constitute a denial of due process. We do not agree with this claim for reasons hereinafter stated.

On November 8, 1966, a Negro woman presented a $100 check for payment at the drive-in window of the First New Haven National Bank. The check was made out to cash, was drawn on the account of Charles and Louise R. Endel and bore the endorsements of Louise R. Endel and Dorothy Jones. The bank teller, Miss Barbara Olson, knew the Endels, and she asked the woman presenting the check how they were. The woman explained to the bank teller that she worked for the Endels and that they were fine. After cashing the check, the bank teller wrote the registration number of the woman's car on its reverse side. The bank teller observed that the woman was a Negro. Moreover, she felt sorry for the woman because she appeared too young and attractive to be working for the Endels as a maid, and this concern caused her to remember the woman's face.

About a month after this incident, Mrs. Endel discovered that her signature on the $100 check was a forgery. An investigation revealed that the car bearing the registration number which had been written on the reverse side of the check was owned by the defendant's husband. Furthermore, it was discovered that the defendant had worked with Mrs. Endel at the New Haven Public Library for several months and that Mrs. Endel often carried blank checks in her pocketbook, which she would leave in various places in the library.

On February 6, 1967, the bank teller was requested to go to the New Haven police station in order to determine whether the defendant was the woman who had cashed the $100 forged check. While she was sitting in the waiting room at the police station, the bank teller recognized the defendant as soon as she walked into the waiting room. Shortly thereafter, the bank teller was taken to a one-way mirror, and, as she looked into a small room, she formally identified the defendant as the woman who had cashed the forged check. At the time of this identification, the defendant was alone in the room. She was arrested about a week after the confrontation at the police station.

At the trial, the bank teller identified the defendant as the woman who had presented the forged check. Furthermore, she testified that she had identified the defendant previously at the police station. Thereafter, the defendant, in the absence of the jury, moved to strike the bank teller's identifications made at the police station and in the courtroom. The trial court refused to strike the bank teller's identifications of the defendant on the ground that the confrontation at the police station did not violate due process of law.

The United States Supreme Court has held that a postindictment, pretrial lineup is such a critical stage in a criminal prosecution that under the sixth amendment a suspect is entitled to the aid of counsel. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. This rule is to be applied prospectively; it does not, therefore, apply to lineups which were conducted before June 12, 1967. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Nevertheless, a pretrial confrontation which was unnecessarily suggestive and conducive to irreparable mistaken identification is a violation of due process, and a pretrial identification which resulted from such a confrontation is constitutionally inadmissible as evidence. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; Stovall v. Denno, supra. This latter rule applies to confrontations for identification purposes which occurred before June 12, 1967. Whenever the trial court has determined that a pretrial confrontation was unconstitutional, an in-court identification of the defendant is admissible only if the state establishes that it is not based on or tainted by the unconstitutional confrontation. United States v. Wade, supra, 388 U.S. 240, 242, 87 S.Ct. 1926; Gilbert v. California, supra, 388 U.S. 272, 87 S.Ct. 1951.

Although the United States Supreme Court has condemned the practice of showing a suspect singly to a witness for identification purposes, that of itself does not amount to a denial of due process of law. Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267, rehearing denied,390 U.S. 1037, 88 S.Ct. 1401, 20 L.Ed.2d 298; Stovall v. Denno, supra; Marden v. State, 203 So.2d 638 (Fla.App.); People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208; State v. Singleton, 253 La. 18, 215 So.2d 838; Commonwealth v. Bumpus, 68 Mass.Adv. Sheets 967, 238 N.E.2d 343; State v. Matlack, 49 N.J. 491, 498, 231 A.2d 369; State v. Simmons, 98 N.J.Super. 430, 437, 237 A.2d 630; Hancock v. State, Tenn.Crim.App., Crim.App., 430 S.W.2d 892. The United States Supreme Court has upheld two convictions where single suspects were shown to identifying witnesses. Biggers v. Tennessee supra; Stovall v. Denno, supra. In order to determine whether a pretrial confrontation amounted to a violation of due process, it is necessary to consider the totality of the circumstances. Foster v. Dalifornia, supra; Stovall v. Denno, supra.

Viewing the totality of the circumstances in this case, we conclude that the court was correct in ruling that the single showing of the defendant for identification purposes was not a violation of due process. The court's ruling was a reasonable one because the record does not indicate that the bank teller was coached, preconditioned, or influenced by suggestion to identify the defendant as the woman who had cashed the forged check. There is no indication that the police had a desire to deal unfairly with the defendant, and she would have been free to leave the police station if she had not been identified. The bank teller testified that she had a distinct recollection of the woman who cashed the check owing to the fact that she felt sorry for the woman because she found it necessary to work for the Endels as their maid. In view of the fact that the registration number on the reverse side of the check was traced to the defendant's husband and that the defendant had worked with Mrs. Endel, it is most unlikely that showing the defendant singly to the bank teller resulted in a mistaken identification. The trial court permitted full cross-examination of all the relevant facts concerning the pretrial identification, and there was ample cross-examination on all matters relating to the weight to be accorded to the in-court identification. Hence, the trial court did not commit error by refusing to strike the evidence of the bank teller's identification at the police station or by allowing her to identify the defendant in the courtroom.

II

In view of our decision that the court properly allowed the bank teller's incourt identification of the defendant, there is no merit to the defendant's claim that the verdict was against the evidence. No useful purpose would be served by summarizing all of the evidence which pointed to the defendant as the woman who had cashed the forged check. It suffices to note that the evidence was sufficient to justify a conclusion by the jury that the defendant was guilty beyond a reasonable doubt. See State v. McGinnis, 158 Conn. 124, 130, 256 A.2d 241.

III

The defendant claims that she was denied her constitutional right to have the assistance of counsel when she was shown singly to the bank teller for identification purposes. We do not agree with this claim. As we have previously stated, the defendant was not entitled to counsel under the Wade and Gilbert cases because they do not apply to confrontations which occurred before June 12, 1967. Nor did the defendant have a right to counsel under the rule of such cases as Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. These two cases are based on the privilege against self-incrimination, and they do not apply in the instant case. United States v. Wade, 388 U.S. 218, 221, 87 S.Ct. 1926, 18 l.Ed.2d 1149.

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