State v. Collette

• Decision Date: 01 April 1986
• Citation: 199 Conn. 308,507 A.2d 99
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Henry COLLETTE. STATE of Connecticut v. Donato TELESCO.

Page 99

507 A.2d 99

199 Conn. 308

STATE of Connecticut v. Henry COLLETTE.

STATE of Connecticut v. Donato TELESCO.

Supreme Court of Connecticut.

Argued Jan. 14, 1986.

Decided April 1, 1986.

Martin Zeldis, Asst. Public Defender, New London, with whom, on brief, was Joette Katz, Public Defender, New Haven, for appellants (defendants).

Felix J. Springer, Sp. Asst. State's Atty., Hartford, with whom, on brief, were Bruce P. Hudock, Stamford, and John M. Massameno, Asst. State's Attys., Wallingford, and Susan E. Gill, Deputy Asst. State's Atty., Stamford, for appellee (State).

Before PETERS, C.J., and HEALEY, SHEA, SANTANIELLO and SAMUEL S. FREEDMAN, JJ.

SANTANIELLO, Associate Justice.

After a joint jury trial, the defendants, Henry Collette and Donato Telesco, were each found guilty of committing burglary in the third degree in violation of General Statutes § 53a-103, ¹ and larceny in the second degree in violation of General Statutes (Rev. to 1981) § 53a-123. ² The trial court subsequently sentenced them both to ten years imprisonment. They now appeal claiming that the trial court erred (1) in denying their motions to suppress the in-court and out-of-court identifications made by Patricia Coombs, a victim of the crimes; (2) in refusing to dismiss the charges of larceny in the second degree on the ground that the state failed to prove that the value of the stolen property exceeded $500; (3) in commenting to the jury on facts in evidence, in violation of their rights to due process and a fair trial; and (4) in sentencing them on the basis of false information, in violation of their right to due process. We find no error.

The jury could reasonably have found that the defendants and another man broke into the home of Patricia and Richard Coombs in Stamford between 9 and 10 a.m. on August 18, 1981. They entered the home through a window and stole money, jewelry and other valuables. No one was in the house at the time, but Patricia Coombs pulled her car into the driveway in time to watch the three men exit the house one by one and get into their car. She immediately called the police and gave them a description of the suspects and their car. Within minutes, the Stamford police spotted a car in the vicinity of the robbery which met the description given by Coombs. The occupants of the vehicle attempted to avoid the police, but after a chase by car and later on foot, they were apprehended. To be sure that they had the right people, the police brought the three men over to the Coombs' home for identification. Patricia Coombs viewed the men from her window and was certain that the defendants were two of the three men that had been at her home earlier.

I

The defendants first claim that the trial court should have suppressed the in-court and out-of-court identifications made by Coombs. " 'A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.' " State v. Hinton, 196 Conn. 289, 293, 493 A.2d 837 (1985); State v. Fullwood 93 Conn. 238, 244, 476 A.2d 550 (1984). In order to succeed, "the defendant must prove (1) that the identification procedures were unnecessarily suggestive; and (2) that the resulting identification was not reliable in the totality of the circumstances." State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985); State v. Parker, 197 Conn. 595, 598, 500 A.2d 551 (1985); State v. Hinton, supra, 196 Conn. 292-93, 493 A.2d 837.

"We recognize that almost any one-to-one confrontation between a victim of a crime and a person whom the police present as a suspect is presumptively 'suggestive,' but not all suggestive confrontations are unnecessary. State v. Hamele, 188 Conn. 372, 376-77, 449 A.2d 1020 (1982); State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976)." State v. Aversa, 197 Conn. 685, 694, 501 A.2d 370 (1985). An immediate viewing of the suspect may be justified where "it [is] important for the police to separate the prime suspect gold from the suspicious glitter, so as to enable them ... to continue their investigation with a minimum of delay." State v. Maturo, 188 Conn. 591, 596, 452 A.2d 642 (1982). Circumstances may also justify an immediate viewing because prompt on-the-scene confrontations are generally more reliable and allow an innocent party to be released quickly if no positive identification is made. State v. Aversa, supra, 197 Conn. at 694 n. 3, 501 A.2d 370; State v. Hamele, supra; State v. Mallette, 159 Conn. 143, 149, 267 A.2d 438 (1970).

Under the circumstances of this case, the confrontation between Coombs and the defendants was reasonably necessary. The police had in their custody three men who generally met the description given by Coombs. It was entirely possible, however, that they were not the men who had burglarized the house. Indeed, as it turned out, Coombs was able to identify two of the men positively, but she stated with certainty that the third man presented to her was not one of the men she had seen earlier. The immediate viewing enabled the police to focus their investigation and gave them greater assurance that innocent parties were not unjustly detained.

Even if we were to assume that the confrontation was unnecessarily suggestive, under the totality of the circumstances, Coombs' identification of the defendants was reliable. ³ Coombs had the opportunity to view the defendants for several minutes while they left the house. Her view was unobstructed and she was only ten to fifteen feet away at the time. She directed her attention to each of the men as they came out and even attempted to ask them questions. Her description of the defendants to the police was accurate, the identifications were made within an hour of her first encounter with the defendants, and she was certain that the defendants were two of the three men who had been in her home that day. Moreover, Coombs did not identify the defendants just because they were presented as suspects. Three men were apprehended and shown to her, yet she positively identified only two. This indicates that she was " 'an unlikely candidate for subliminal seductions' "; State v. Perez, supra, 198 Conn. at 75, 502 A.2d 368; State v. Ledbetter, 185 Conn. 607, 615, 441 A.2d 595 (1981); and that even if the police procedures were suggestive, they did not corrupt the overall reliability of her identifications. See State v. Theriault, 182 Conn. 366, 374-75, 438 A.2d 432 (1980).

II

The defendants next claim that the trial court erred in refusing to dismiss the charges of larceny in the second degree. They contend that the state failed to prove beyond a reasonable doubt that the value of the stolen items exceeded $500 as required by General Statutes (Rev. to 1981) § 53a-123(a)(2), and, as a result, that it did not establish an essential element of the crime. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). At trial, the stolen property was displayed to the jury. It consisted of four watches, nine bracelets, seven rings, a pair of earrings, a passport wallet, a travel clock, fifty-one British pounds and some miscellany. To establish the value of the items taken from the Coombs' home, the state called as its expert witness Henry Rebhun, an experienced professional jeweler and appraiser. Rebhun testified that the value of the items on the date of the burglary was approximately $2000. The defendants called Ben Messim, also a professional jeweler, to rebut Rebhun's testimony. Messim appraised the items as having a total value of between $400 and $453. ⁴ The defendants argue that the state failed to establish the essential element of value because Rebhun testified to the replacement value of the property and not to the fair market value.

In establishing the value of the stolen items, the state is required to prove "the market value of the property ... at the time and place of the crime...." (Emphasis added.) General Statutes § 53a-121(a)(1). ⁵ "Market value" has been defined as " ' "the price that would in all probability ... result from fair negotiations, where the seller is willing to sell and the buyer desires to buy." ' " State v. Cochran, 191 Conn. 180, 190, 463 A.2d 618 (1983); O'Brien v. Board of Tax Review, 169 Conn. 129, 138, 362 A.2d 914 (1975). The determination of value is a question for the trier of fact. State v. Cochran, supra, 191 Conn. 190-91, 463 A.2d 618. This court will not disturb the trier's determination if, " 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

The defendants rely on Rebhun's remarks at two points during cross-examination to support their claim that he employed a replacement value rather than a market value standard. Defense counsel asked Rebhun whether he would buy the stolen items if offered to him for $200. Rebhun responded that he was not personally interested. From this, the defendants argue that had the market value of the goods actually been $2000, Rebhun would have jumped at the offer. Later during cross-examination, Rebhun was also asked how he appraised goods as an insurance adjuster. Rebhun answered: "Well, the insurance company, I also supply merchandise to the insurance company because I replace merchandise in case the merchandise is lost. The insurance company comes to me and wants to know [for] how much can I replace [sic] that particular merchandise." (Emphasis added.) The defendants claim that his reference to replacing merchandise directly supports their contention that he improperly valued the stolen goods at replacement cost.

Reviewing Rebhun's testimony as a whole, however, we conclude that the jury could...