State v. Davis

• Decision Date: 25 February 1986
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jerry Lee DAVIS.

Page 1372

504 A.2d 1372

198 Conn. 680

STATE of Connecticut v. Jerry Lee DAVIS.

Supreme Court of Connecticut.

Argued Dec. 6, 1985.

Decided Feb. 25, 1986.

John F. Kavanewsky, Jr., Norwalk, for appellant (defendant).

Peter J. Ponziani, Sp. Asst. State's Atty., with whom, on brief, were Walter D. Flanagan, State's Atty., and Raymond Doyle and Carl Schuman, Asst. State's Attys., for appellee (state).

CALLAHAN, Associate Justice.

A jury found the defendant, Jerry Lee Davis, guilty of robbery in the first degree, a violation of General Statutes § 53a-134(a)(3). ¹ He was sentenced to imprisonment for seven years. On appeal, he claims that the trial court erred in: (1) refusing to suppress an out-of-court photographic identification and a subsequent in-court identification, and (2) refusing to instruct the jury adequately on the subject of eyewitness identification. We find no error.

The jury could reasonably have found the following facts: At about 7 a.m. on March 25, 1982, in Danbury, the victim, a thirteen year old girl, was accosted on her way to school by a black male holding a knife. He told her if she did not surrender her pocketbook, he was going to cut her throat. After taking the victim's purse, the robber entered a small red car with green patches and was driven away by an unidentified operator. That afternoon, when the victim returned home, she told her mother about the incident and her mother called the police. Officer Mack of the Danbury police department talked with the victim and obtained a description of her assailant. Although the victim did not recall how long she had had the robber in view, she was able to describe him in detail. She told the officer that he was wearing a green sweater and blue coveralls with suspenders and that he had a moustache and a growth of facial hair, but not a full beard.

We first address the defendant's claim that the trial court erred in refusing to suppress the out-of-court photographic identification of the defendant and the subsequent in-court identification. "A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure." State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984). This court has repeatedly stated that "[i]n determining whether identification procedures violate a defendant's due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on the 'totality of the circumstances.' " State v. Hinton, 196 Conn. 289, 292-93, 493 A.2d 837 (1985); State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985); State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980).

The day after the robbery, Mack and another officer went to the victim's home and displayed seven photographs to the victim in an effort to have her identify the assailant. The victim viewed the photographs and immediately picked out a photograph of the defendant as the person who had confronted her the morning before. At the time she viewed the photographs, she knew the police had a suspect in custody. The photographic array used by the Danbury police department contained black and white photographs of similar looking black males. All of the men pictured in the photographs had similar builds and some type of facial hair. Each photograph showed, on a placard, the date of the arrest of the individual depicted. The only recent arrest date on the photographs in the array was the date of March, 1982, which was on the photograph of the defendant. In the photograph, the defendant was depicted wearing the same clothes worn by the robber at the time of the crime, bibbed blue jeans with a shirt underneath.

We agree with the defendant that the similar clothing and the recent arrest date in the photograph and the fact that the victim knew a suspect was in custody made the photographic display unnecessarily suggestive; nevertheless, we find that the victim's identification of the defendant was reliable based on the totality of the circumstances. "The constitutional test for reliability requires the trial court to consider 'the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of [her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.' Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243 [2253], 53 L.Ed.2d 140 (1977); State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980)." State v. Hinton, supra, 196 Conn. at 295-96, 493 A.2d 837.

At the time of the robbery, the victim viewed the defendant from a distance of about three and one-half feet. She also had the opportunity to view him as he ran to his car which was approximately 100 feet away. She described the robber "as being five foot ten, large frame, almost heavyset, having a wild-type hair, some facial hair, and was wearing blue jeans-type overalls, with a green shirt underneath the overalls," an accurate and detailed description which fit the defendant. The identification procedure took place only thirty-two hours after the robbery. Mack testified that when the victim picked out the photograph of the defendant she stated that "she recognized him, and she felt certain that this was the individual, that the features matched the features that she knew existed." There is no indication that the victim based her identification on the clothing worn by the defendant or on the dates in the photographs. The victim testified that "I saw the numbers, but I didn't know what they meant. I really didn't pay much attention to them. I was just looking at the faces." We conclude that the out-of-court photographic identification procedure even though unnecessarily suggestive resulted in a reliable identification and did not violate the defendant's right to due process. The trial court did not err in refusing to suppress the out-of-court identification.

Further, we do not find error in the refusal of the trial court to suppress the in-court identification of the defendant by the victim. This court will set aside a conviction based upon an in-court identification which follows an out-of-court identification only " 'if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' " (Citations omitted.) State v. Fullwood, 193 Conn. 238, 243-44, 476 A.2d 550 (1984), quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); State v. Parker, 197 Conn. 595, 598, 500 A.2d 551 (1985); State v. Vass, 191 Conn. 604, 609, 469 A.2d 767 (1983); State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983). In the present case, the photographic identification procedure resulted in a reliable...