State v. DeWitt
| Decision Date | 12 June 1979 |
| Citation | 419 A.2d 861,177 Conn. 637 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Paul DeWITT. |
Courtney B. Bourns, Sp. Public Defender, for appellant (defendant).
Ernest J. Diette, Jr., Chief Appellate Counsel, New Haven, with whom, on the brief, were Austin J. McGuigan, Chief State's Atty., Wallingford, and Richard E. Maloney, Asst. State's Atty., for appellee (state).
Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.
The defendant and a codefendant were tried together and convicted, after a trial to a jury, of burglary in the third degree in violation of General Statutes § 53a-103a, robbery in the first degree in violation of § 53a-134(a) (2), and kidnapping in the second degree in violation of §§ 53a-94 and 53a-91(2) (b). Each defendant after entry of judgment separately appealed to this court. The appeal of the codefendant, which has already been decided; see State v. Lee, 177 Conn. 335, 417 A.2d 354 (1979); raised some but not all of the issues involved in this appeal.
From the evidence introduced at trial, the jury might reasonably have found the following facts: On December 10, 1974, Frank W. Salamon was residing with his parents in a two-story, one-family home located in a rural area of Canton. About 11 a. m., as Salamon was awakening in his second floor bedroom, he heard a noise downstairs and the family dog barking. Salamon put on his eyeglasses and proceeded to the staircase which was close to his bedroom. As he started downstairs, he encountered a black male, whom he later identified as the codefendant George W. Lee. Lee, who was coming up the stairs, pulled out a pocketknife with a three- or four-inch blade, pointed it at Salamon, and ordered him to return to his bedroom. Salamon was directed to sit on the bed while Lee took things from drawers and cabinets and put them in a pillowcase. While Salamon was sitting on his bed a white male entered, wearing a scarf that covered the lower part of his face; this white male was subsequently identified as the defendant Paul DeWitt. Thereafter Lee left the room, but returned five minutes later and remained in the room with the defendant DeWitt for about another five minutes. While both intruders were together in the bedroom, the defendant tied Salamon on the bed with a lamp cord, and a sheet was tied around his head, so that he could not see. Shortly after the pair left, Salamon freed himself and immediately notified the police.
The defendant on this appeal has briefed assignments of error relating to four major issues: (1) should the trial court have set aside the verdict of kidnapping in the second degree? (2) should the court have granted the motion to suppress two pretrial identifications? (3) should the court have excluded certain evidence as hearsay and lacking in probative value? and (4) should the court have separated the defendant's trial from that of the codefendant Lee? The defendant also challenges the trial court's failure to include in its finding certain paragraphs of the defendant's draft findings; the state has waived objection to inclusion of all but three of these paragraphs and they are therefore added to the finding. The remaining requested additions to the finding are either implicit in the finding; State v. Warren, 169 Conn. 207, 214, 363 A.2d 91 (1975); or are disputed or not admitted or would not affect the result. Aillon v. State, 168 Conn. 541, 542, 363 A.2d 49 (1975).
The sufficiency of the evidence to support conviction on the charge of kidnapping was discussed extensively in State v. Lee, supra, 177 Conn. 342-344, 417 A.2d 354-358. We there held that the facts-Salamon's movement at knife-point back up to his bedroom, his detention in that bedroom during the course of the robbery, and his being left tied up so as to require time to extricate himself-were sufficient to permit a jury to find the restraint and intent necessary to constitute kidnapping in the second degree. "(T)he legislature (has) seen fit not to merge the offense of kidnapping with other felonies, nor to impose any time requirements for restraint, nor distance requirements for asportation, to constitute the crime of kidnapping." Id., 343, 417 A.2d 358. There was therefore no error in the trial court's failure to set aside the verdict of kidnapping in the second degree under §§ 53a-94 and 53a-91(2)(b).
The defendant was identified at the trial by the victim Salamon as the white man who had committed the crimes charged at Salamon's Canton home. Before the trial began, the defendant moved to suppress this identification, arguing that two pretrial identifications were unconstitutional, should be suppressed, and had irretrievably tainted the in-court identification. This issue also was discussed, at least in part, in State v. Lee, supra.
When Salamon reported the crimes to the police, he furnished them with a description of a white man, five feet, ten inches in height, of medium build, having black hair of short length. He told one of the police officers that the white man who had robbed him had a broad forehead with a high hairline. At Hartford police headquarters, about an hour after the crime had been committed, Salamon examined five mug shots of white males and picked out one of them, a photograph of the defendant DeWitt, as the white man in question. Salamon was aware, before he examined the photographs, that a photograph of a suspect would be in the group of pictures that he was to be shown. The photographs, all of white men, included several men with long hair, and one with glasses, although Salamon had indicated that the white intruder had short hair and wore no glasses. Nonetheless, in the circumstances of this case, including Salamon's unrestricted opportunity while wearing eyeglasses to view DeWitt in his room, in full daylight, for at least ten minutes, the accuracy of his description, and the relative brevity of time between the commission of the crime and his positive identification of the photograph, the trial court was clearly correct in concluding that the photographic identification of the defendant DeWitt was not made under impermissibly suggestive conditions. State v. Willin, 177 Conn. 248, 252, 413 A.2d 829 (1979); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140, 144 (1977).
Salamon had another opportunity to identify the defendant DeWitt in advance of trial when he was taken to see DeWitt and Lee in the corridor of the Court of Common Pleas in Middletown. The circumstances surrounding this "corridor confrontation" are fully detailed in State v. Lee, supra, 177 Conn. 338, 417 A.2d 355. Even if we assume, as the state virtually concedes, that this identification was unconstitutional, the fact remains that the state never directly introduced this pretrial identification. For this reason, the trial court made no ruling about the admissibility of the identification of the defendant at Middletown. What is at issue is not this identification per se but rather its bearing on the admissibility of Salamon's subsequent identification in court. The trial court concluded that the state had established by clear and convincing evidence that Salamon's in-court identification was based upon his original observation and recollection of both defendants at the scene of the crime, and not upon the events of the "corridor confrontation" in Middletown. As in State v. Lee, we agree.
The defendant claims that the trial court erred in admitting into evidence certain testimony alleged to be hearsay or irrelevant. These evidentiary claims have been presented in the defendant's brief in a manner that fails to conform with the requirements of Practice Book, 1978, § 3054(c)(3). That section states: "When the basis of the ruling cannot be understood without a knowledge of the evidence or proceeding which preceded or following the ruling, a brief narrative or verbatim statement of the evidence or proceeding should be made." Since the questions raised at best challenge the exercise of the discretion of the trial court to determine admissibility, and hence do not rise to a constitutional level, they will not be considered.
The defendant's final claim is that he was substantially prejudiced by the trial court's failure to grant his motions, both pretrial and during trial, to sever his trial from that of the codefendant Lee. This court has recently restated the rules that govern motions for separate trials. State v. Varricchio, 176 Conn. 445, 447, 408 A.2d 239 (1979).
The defendant concededly made a timely pretrial motion to sever. At that time, the court...
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