State v. Doolittle

• Citation: 189 Conn. 183,455 A.2d 843
• Court: Supreme Court of Connecticut
• Decision Date: 08 February 1983
• Parties: STATE of Connecticut v. David DOOLITTLE.

Page 843

455 A.2d 843

189 Conn. 183

STATE of Connecticut v. David DOOLITTLE.

Supreme Court of Connecticut.

Argued Nov. 8, 1982.

Decided Feb. 8, 1983.

[189 Conn. 184] G. Douglas Nash, Asst. Public Defender, for appellant (defendant).

Robert J. O'Brien, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Roland D. Fasano, Asst. State's Atty., for appellee (state).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, SHEA and GRILLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

After a trial to the jury the defendant was convicted of robbery in the first degree in violation of General Statutes § 53a-134(a)(3). ¹ Just prior to the trial, the court, Reynolds, J., held an evidentiary hearing on the defendant's "Motion to Suppress Eye Witness Identification and/or Photographic Identification" and denied that motion. ² At the end of the state's case in chief, the court granted the defendant's oral motion to reopen the hearing on this motion to suppress to add testimony that had come out during the trial. The court denied the motion to suppress after considering the additional testimony. The court also denied an oral motion for discovery and production of certain exculpatory information, made at the end of the state's case. ³ In this appeal the defendant claims that the trial court erred in twice denying his motion to suppress and in denying his oral motion for discovery and production.

PRETRIAL IDENTIFICATION SUPPRESSION HEARING

The circumstances surrounding the court's action denying the motions to suppress prior to trial and after an evidentiary hearing are the following: On July 21, 1978, at about 10:30 p.m. Gail Cook was working as a clerk-cashier at the Food Bag store on West Main Street in Meriden. At that time there were about six people in the store. While Cook was attending a customer, Lucy Kennedy, at the register, a young man with a bandana around his face walked in. As he walked through the door the bandana fell down off his face. He approached Cook and said "it's [your] turn again, baby, this is a holdup." She recognized his face as she had seen him in the store before. She thought he was joking. She "kind of argued with him" and he repeatedly asked her to give him the money and she refused, shutting the cash register drawer. The bandana kept falling down and he kept putting it back up. He was just over the counter from her. The store was fully lit by fluorescent lighting. He eventually pulled out a knife and leaned over the counter even closer to her, "only two or three feet away." She then gave him the money, he fled and she called the police.

When the police arrived, she gave them a detailed description of the robber including height, weight, age, hair and clothing, and told them that she had seen him in the store before. ⁴ On the night of the robbery she was taken to the police headquarters in Meriden where she reviewed trays of mug shots and she selected a photo of the defendant. Detective Fred J. Bucchieri, who investigated the robbery, brought this photo to court with him; it became an exhibit at the suppression hearing. ⁵ Cook told the police that the photo was of the robber but that the length of hair and the fullness of face of the man who robbed her was different from the photo. On cross-examination she remained steadfast in her identification of this photo. ⁶

On August 31, 1978, Cook returned to Meriden police headquarters at the request of the police where she viewed an array of seven photos. She picked one photo from this array which she told the police was that of the defendant. This photo was one of the defendant taken in 1978; the photo of the defendant she had selected on July 22 was taken in 1975. Bucchieri testified that he went to Cook's house sometime between July 21 and August 31 and showed her some photos. He, however, had no record of these photos nor did he make a report on it.

THE TRIAL

Lucy Kennedy testified that on the night of the robbery she drove to the Food Bag store with her sister-in-law to purchase a bottle of juice. While she was at the counter paying Cook, a man with a bandana over his face came in. She heard him say, "[i]t's your time again" to Cook, and the latter turned over the money after he drew out a knife and held it towards Cook. While in the store she observed the front and side of his face. Although the robber told Kennedy not to go anywhere, she walked behind him and ran out of the store. She estimated that the events of the robbery inside the store took up approximately two minutes. She got in her car and at this point she saw the robber running outside across the storefront toward a side street. At that point she observed him as the bandana was down around his neck. At that time she was about twenty feet from him looking through the window of her car. There were lights at the gas pumps ⁷ and in the store. Kennedy then returned to the store, talked to the cashier and called the police to whom she gave a description. Although she went to the police station that night, she did not make an identification of the robber from the photos she viewed. ⁸

Cook also testified at the trial and her testimony on her identification of the defendant from police photos was essentially as she had testified on the motion to suppress. She told the jury that as he walked through the door he said "[i]t's your turn again, baby" ⁹ and that the bandana "fell off his face, down below his chin" as he approached the counter. She refused to give him the money, thinking he was joking, until he pulled a knife and then she took him seriously. She saw him "full in the face" and she had seen him before. Cook recounted for the jury the description she had given the police on the night of the incident as well as the circumstances of her selection of the defendant's 1975 photo on July 21, 1978, and of his 1978 photo on August 31, 1978. She maintained that no police officer had shown her any photos at any time other than on July 21 and August 31. Additionally, she made an in-court identification of the defendant during the trial.

Bucchieri also testified at the trial that Cook had picked out a 1975 photo of the defendant on July 21, 1978, and that on August 31, 1978, she picked out a 1978 photo ¹⁰ of him from an array of seven photos he had prepared. He testified that she had "[n]o doubt whatsoever" about the 1978 photo. Bucchieri's testimony on cross-examination about Cook's selection of the 1975 photo of the defendant at the police station was later advanced as a basis ¹¹ by the defense for moving to reopen the court's earlier denial of the defendant's motion to suppress along with Bucchieri's testimony that he thought that on one occasion between July 21 and August 31 he had shown Cook some police photos at her home.

The defendant claims that the identification procedures were impermissibly suggestive and unreliable and that, therefore, the denial of suppression of the identification was error. We do not agree.

"In 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 examination of the 'totality of the circumstances.' " (Citations omitted.) State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); see State v. Ledbetter, 185 Conn. ---, ---, 43 CLJ 26, pp. 1, 3, 441 A.2d 595 (1981). " '[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)." ¹² State v. Anderson, 178 Conn. 287, 291, 422 A.2d 323 (1979).

In making his claim, the defendant, pointing to the fact that no record was made of the photos Cook selected on July 21, maintains that her testimony as to that identification coupled with Bucchieri's testimony that she was not positive at that time, along with the other identification procedures, satisfies the first prong of the test. Included in this argument is his claim that an identification procedure, for which the photos allegedly used are not available, took place between July 21 and August 31 when Bucchieri went to her house with police photos for her to view. Cook denied that this ever took place but Bucchieri's testimony suggests the contrary although he had no report of its occurrence. ¹³ The defendant argues further that the photo array, which she viewed on August 31, ¹⁴ repeating as it did the defendant's photo as well as placing it among other photos not resembling the robber emphasized his photo ¹⁵ and, thus, raised the danger of misidentification to an impermissibly suggestive level.

Even if we were, arguendo, to consider that these circumstances made the identification process suggestive, the defendant still could not prevail if the identification itself was nevertheless reliable in light of the totality of the circumstances. This is so because reliability is the linchpin in determining the admissibility of identification evidence. ¹⁶ Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); State v. Ledbetter, supra, 185 Conn. at ---, 441 A.2d 595; State v. Theriault, supra, 182 Conn. at 373, 438 A.2d 432; State v. Gold, 180 Conn. 619, 655, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980). "The standard, after all, is that of fairness as required by the Due Process Clause of the Fourteenth Amendment." Manson v. Brathwaite, supra, 432 U.S. at 113, 97 S.Ct. at 2252; State v. Piskorski, 177 Conn. 677, 742,...