State v. Evans

• Decision Date: 01 July 1986
• Citation: 200 Conn. 350,511 A.2d 1006
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. William EVANS.

Page 1006

511 A.2d 1006

200 Conn. 350

STATE of Connecticut v. William EVANS.

Supreme Court of Connecticut.

Argued April 9, 1986.

Decided July 1, 1986.

Irving L. Aronson, Asst. State's Atty., with whom, on brief, was Richard A. Schatz, former Asst. State's Atty., for appellee (state).

Perry C. Buddington, Special Public Defender, with whom, on brief, was James L. Radda, Sp. Public Defender, for appellant (defendant).

Before PETERS, C.J., and HEALEY, SHEA, SANTANIELLO and CALLAHAN, JJ.

CALLAHAN, Associate Justice.

The defendant, William Evans, was charged in a substitute information with the crime of robbery in the first degree in violation of General Statutes § 53a-134(a)(4) ¹ and with being a persistent dangerous felony offender in violation of General Statutes § 53a-40(a). ² A jury found the defendant guilty of both crimes. On appeal, the defendant claims that the trial court erred: (1) in permitting testimony at trial concerning a pretrial photographic identification and in refusing to suppress the pretrial identification as unnecessarily suggestive and unreliable; and (2) in denying the defendant's motion to dismiss the substituted information as violative of his equal protection rights under article first, § 20 of the Connecticut constitution. We find no error.

The record reveals that at approximately 2 p.m. on September 30, 1983, a robbery occurred at the courtesy booth at the Finast supermarket in the New London Shopping Center. The robber had a brown paper bag and demanded that the bag be filled with money. Pat Philburn, a store employee, placed $1950 into the bag. At trial she testified that the robber was a black male with no facial hair, approximately six feet tall, weighing two hundred pounds, about thirty-six years old, wearing a blue baseball cap with the letter "B" on it. Karen Neilon, another store employee, testified at trial that she saw the robber place a gun on the counter. She further testified that the robber was a black male, approximately six feet tall, medium to large frame, with no facial hair and a fairly dark complexion, in his thirties. Neither Philburn nor Neilon was able to identify the defendant as the robber at trial or when they viewed a photographic array containing a picture of him soon after the robbery.

The only other person who claimed to have viewed the robber was Old Lyme Constable Bernard Douton. On September 30, 1983, Douton, while in his patrol car, received a description, over his police radio, of an automobile allegedly involved in the robbery. It was described as a large yellow vehicle with a white top and reportedly was being operated by a black male with a purple shirt. At approximately 2:15 or 2:30 p.m. that day, Douton observed, on I-95, a large yellow automobile being driven by a black male. Because the vehicle had a black, rather than a white top, however, he did not stop it immediately but pulled alongside it and observed the driver for thirty or thirty-five seconds during most of which time the driver was facing him. Douton then signalled the driver to pull over and the driver stopped his vehicle about ten feet ahead of Douton's patrol car. At that point the driver began to exit his vehicle and, while doing so, looked back toward Douton for about five seconds. Douton told the man to get back in the car, remain stationary, and place his hands on the dashboard. The driver instead re-entered his automobile and drove away. Douton pursued him in his patrol car and the driver eventually lost control of his vehicle and it struck a stone wall. The driver then ran from the vehicle and Douton continued the pursuit on foot. During the chase the suspect tripped and fell to the ground, then got up, looked at Douton for "less than five seconds," implored him not to shoot and started running again. Shortly thereafter, he stopped, turned to Douton and shouted, "Don't shoot. Don't shoot. I give up." This encounter consumed "less than five seconds" before the suspect turned away from Douton and ran through a backyard and over a stone wall. Douton at that point terminated the pursuit and returned to his vehicle. The closest Douton was to the suspect during the chase was ten or fifteen feet, but he had a clear field of vision during the entire pursuit. Douton was able to describe the suspect to the New London police department as a clean-shaven black male, approximately six feet tall, 35 to 40 years old, medium build, and wearing a purple shirt.

The day after the robbery, at New London police headquarters, Douton viewed an array of five or six black and white photographs of black males for approximately fifteen or twenty minutes. He did not identify any of the photographs in the array as that of the man he had chased. One of the photographs, however, did in fact depict the defendant but with a full beard and a large bandage covering his forehead. Later that same day at Old Saybrook police headquarters Douton was shown a single color photograph of the defendant taken by the Old Saybrook police. He positively identified the man portrayed in that photograph as the man he had chased the previous day.

The defendant's first claim is that the trial court erred in permitting testimony at trial of the pretrial photographic identification and in refusing to suppress the identification as unnecessarily suggestive and unreliable. The defendant asserts that the identification procedure used by the police violated his due process rights. "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 consistently maintained 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)." State v. Davis, 198 Conn. 680, 504 A.2d 1372 (1986).

Although we have recognized that pictorial recurrence can be suggestive because it increases the risk of misidentification; State v. McKnight, 191 Conn. 564, 572, 469 A.2d 397 (1983); State v. Ledbetter, 185 Conn. 607, 613, 441 A.2d 595 (1981); we find that Douton's earlier viewing, in the array, of a photograph of the defendant, which he did not identify, did not make the identification procedure unnecessarily suggestive. ³ Where a witness views a photograph of a defendant which does not resemble the defendant but later identifies the defendant based on a different photograph, viewing of the earlier photograph does not taint the latter photographic identification. United States v. Brown, 461 F.2d 134, 144 (D.C.Cir.1972). The first photograph of the defendant shown to Douton was markedly different from the second photograph. In the first photograph, the defendant had a full beard, and a large bandage covered most of his forehead. In the second photograph, the defendant was depicted with only a moustache. Douton testified that, when he identified the second photograph as that of the man he had chased, he did not recognize it as depicting an individual of whom he had seen a photograph earlier that day in the photographic array.

Although the earlier viewing of a different photograph of the defendant did not result in an unnecessarily suggestive identification procedure, we nevertheless find that the viewing of the single color photograph of the defendant was itself unnecessarily suggestive. The danger of misidentification of a suspect by a witness is increased where the photograph of an individual is in some way emphasized. Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 970, 19 L.Ed.2d 1247 (1968); 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); State v. Hafner, 168 Conn. 230, 238, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S.Ct. 95, 46 L.Ed.2d 74 (1975). Showing a witness a single photograph rather than an array of photographs obviously emphasizes that photograph. Additionally, this single photograph was further emphasized because it was the only color photograph shown Douton. Any one-to-one type confrontation between a witness or victim and a person whom the police present to him as a suspect must necessarily convey the message that the police have reason to believe that person guilty. State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976). We conclude that in the present case the pretrial identification procedure was unnecessarily suggestive because it consisted of a showing of only a single color photograph rather than an array of photographs.

Even though we find that showing the witness a single color photograph was unnecessarily suggestive, "[o]ne-man confrontations do not per se constitute a denial of due process of law.... A determination as to whether there has been a violation of due process rights in an identification procedure ' "depends on the totality of the circumstances surrounding it." Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 [1967].' State v. Hafner, 168 Conn. 230, 235, 362 A.2d 925 [1975] and cases cited therein." (Citations omitted.) State v. Middleton, supra, 170 Conn. 606-607, 368 A.2d 66.

We conclude that, despite the unnecessarily suggestive pretrial identification procedure, the witness' identification of the defendant was nevertheless reliable based on the totality of the circumstances. " 'The constitutional test for reliability requires the trial court to consider "the...