State v. Carnegie

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

[158 Conn. 265]

Page 629

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.,[158 Conn. 266] and Robert K. Walsh, Asst. State's Atty., for appellee (state).

Before [158 Conn. 264] KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

[158 Conn. 266] 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 [158 Conn. 267] 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

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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 [158 Conn. 268] 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[158 Conn. 269] 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...