State v. Cefalo

• Decision Date: 12 January 1979
• Parties: STATE of Maine v. Robert CEFALO.
• Court: Maine Supreme Court

Page 233

396 A.2d 233

STATE of Maine v. Robert CEFALO.

Supreme Judicial Court of Maine.

Jan. 12, 1979.

William P. Donahue, Dist. Atty., Joseph A. Wannemacher, Asst. Dist. Atty. (orally), Alfred, Roger P. Flaherty, Asst. Dist. Atty., Sanford, for plaintiff.

Kettle & Carter, P. A. by Burt Kettle (orally), Portland, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.

McKUSICK, Chief Justice.

A York County jury found defendant Robert Cefalo guilty of rape under 17-A M.R.S.A. § 252 (Supp.1978). Defendant appeals from his conviction on grounds that (1) the presiding justice erred in admitting evidence of an out-of-court and an in-court identification of defendant by the prosecutrix, and (2) the evidence was insufficient to support the jury's verdict. Because we find that the admission of the highly probative identification evidence survives constitutional scrutiny, we deny the appeal.

At trial, the 20-year-old prosecutrix gave the following account of the rape. At approximately 1:00 a. m. on July 6, 1977, the prosecutrix returned after work to her cottage residence in Old Orchard Beach. Unable to gain entrance to her locked room, she remained standing on the screened-in porch of the cottage to await her roommate's return. The porch was lighted by a fixture in the center of the ceiling. A man dressed in a black poncho that stretched to his knees suddenly appeared on the sidewalk in front of the house and asked the prosecutrix if he could use her telephone to obtain help for a child who allegedly had been hurt nearby. The prosecutrix answered that she did not have a phone and suggested that the man try the house next door. A short time later, the same man returned wearing a mask and carrying a small firearm. He entered the porch, covered the prosecutrix's face with a black scarf, and then took her to the lawn of the house next door where he raped her. The rape lasted approximately twelve minutes.

The prosecutrix reported the incident to the police later that same morning. Based on the prosecutrix's description of her assailant, the police drew a composite sketch and left the drawing with the prosecutrix. The prosecutrix, an amateur artist, made several alterations in the composite and returned it to the police. Approximately five weeks later, on August 16, 1977, the investigating officer showed the prosecutrix fifteen photographs of different men and asked her if any of the photographs fitted the rapist. The prosecutrix, selecting a photograph of defendant, said, "(T)his man look(s) a lot like the man who attacked me."

On October 30, 1977, the investigating officer showed the prosecutrix a single photograph and asked if the man portrayed was the rapist. The photograph was a classic front and profile "mug shot" of Cefalo. The prosecutrix examined the photograph and then made her first positive identification of defendant, stating, "That's the man." ¹

The Superior Court trial commenced on March 27, 1978. After conducting a suppression hearing pursuant to State v. Boyd, Me., 294 A.2d 459, 465-66 (1972), the presiding justice ruled that the prosecutrix would be allowed to identify defendant in her testimony before the jury. The presiding justice also admitted evidence of the August 16, 1977 identification at trial.

I. Admissibility of Identification Evidence

Defendant argues on appeal that the admission of evidence of the prosecutrix's out-of-court identification of defendant on August 16, 1977, and her in-court identification of defendant at trial violated his right to due process of law under the Constitutions of the United States (amend. XIV, § 1) and the State of Maine (art. I, § 6-A). Specifically, defendant maintains that (1) the August 16 photographic array was so unnecessarily suggestive as to create a substantial risk of misidentification and (2) the prosecutrix's in-court identification of defendant was tainted both by the August 16 confrontation and the single-person mug shot showup of October 30, 1977.

State v. St. Onge, Me., 392 A.2d 47 (1978), sets forth the rule governing a trial judge's disposition of a challenge to the admission of identification evidence. ² The presiding justice must hold an evidentiary hearing to determine (1) if the identification procedure employed by the State was unnecessarily suggestive and, if so, (2) whether the "corrupting effect" of the suggestive procedure is outweighed by the reliability of the identification as measured by the factors outlined in Neil v. Biggers,409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), ³ and expounded upon by this court in State v. Rowe, Me., 314 A.2d 407, 417 (1974). See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In essence, upon finding that the state used an unnecessarily suggestive procedure, the trial judge must determine whether the witness' out-of-court or in-court identification of the defendant has a basis independent of the suggestive effect of the defective confrontation. Unless the identification of the defendant is based on the witness' independent recollection of the incident, the evidence must be excluded.

Despite the clarity of the general rule declared in our past cases, we have not previously expressly addressed two questions regarding its application. First, which party has the burden of proof on the issue of the admissibility of the identification evidence and by what quantum of proof? And, second, what is the Law Court's standard of review of a determination by the trial court that a pretrial identification procedure is unnecessarily suggestive or that a witness' identification of a defendant has an independent basis?

Burden of Proof

The applicable Supreme Court cases provide little guidance on the burden of proof issue. Although there is general agreement among the lower courts that the defendant, as the movant in a suppression hearing, must prove by a preponderance that the challenged pretrial identification procedure was "unnecessarily suggestive," ⁴ the courts split on the question of which party bears the burden of proof on the critical issue of whether the witness' out-of-court or in-court identification reflected the witness' own recollection of the defendant or resulted from the impact of a suggestive pretrial confrontation. ⁵ A few jurisdictions require the defendant to establish both the suggestiveness of the procedure and the absence of an independent basis, ⁶ while the majority of state and federal courts place the burden squarely on the prosecution to show by clear and convincing evidence that a defective pretrial confrontation employed by the police did not lead to an unreliable identification of the defendant. ⁷

The split among the courts appears to reflect differing conceptions of the due process concerns underlying the recent Supreme Court decisions that address the problem of eyewitness identification. Courts placing the burden on the defendant emphasize the prime interest at stake as preventing the admission of unreliable identification testimony that may lead to the conviction of the innocent. See United States ex rel. Kirby v. Sturges, 510 F.2d 397 (7th Cir.), Cert. denied, 421 U.S. 1016, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975). Since no due process right is violated unless a defective confrontation actually leads to the witness' misidentification of the defendant, the burden is on the defendant to show both the suggestive nature of the identification procedure and the absence of an independent basis for the witness' identification. On the other hand, courts placing the burden on the state emphasize an interest in having law enforcement agencies employ fair identification procedures that exist independently of the reliability of the particular identification. Since the use of a suggestive procedure is contrary to "governmental fair play" ⁸ and creates a risk of misidentification that cannot be completely erased by a trial court's finding that the identification is nonetheless reliable, the burden shifts to the State to show that the defective procedure it employed did not expose the defendant to an unwarranted conviction. Having utilized an unfair means to establish the defendant's guilt, the State must show that the defendant was not harmed by its own transgression.

Our examination of the most recent Supreme Court case to address the problem of eyewitness identification, Manson v. Brathwaite, supra, reveals that both of these due process concerns underlie the extension of special protection to defendants subjected to suggestive pretrial confrontations. Although Manson v. Brathwaite leaves no doubt that "reliability is the linchpin in determining the admissibility of identification testimony," 432 U.S. at 114, 97 S.Ct. at 2253, the Court noted that the reliability test it adopted serves an important deterrence function: "The police will guard against unnecessarily suggestive procedures . . . for fear that their actions will lead to the exclusion of identifications as unreliable." Id. at 112, 97 S.Ct. at 2252.

We believe that placing the burden on the State to prove that an unnecessarily suggestive identification procedure did not create a substantial risk of misidentification best expresses the balance the Supreme Court struck between the twin due process concerns. No identification will be excluded Solely because the police employed an unnecessarily suggestive pretrial identification procedure. Reliability is the key to admissibility. However, if the police ignore the frequent warnings of this court ⁹ and continue to use defective confrontation procedures, the State will run the risk of being unable to establish independently the reliability of the identification. This approach assures that reliable and probative identifications will be admissible, while deterring the police from employing unfair procedures that violate norms of governmental fair play and create the risk of misidentification....