State v. Fullwood

Decision Date22 May 1984
Citation193 Conn. 238,476 A.2d 550
PartiesSTATE of Connecticut v. Gerald H. FULLWOOD.
CourtConnecticut Supreme Court

Barry J. Ward, New London, with whom, on the brief, was Gilbert Shasha, New London, for the appellant (defendant).

C. Robert Satti, State's Atty., with whom was Michael L. Regan, New London, for the appellee (state).

Before PETERS, HEALEY, PARSKEY, SHEA and GRILLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant was convicted after a trial to a jury of robbery in the first degree in violation of General Statutes § 53a-134(a)(4). On this appeal, he claims that the trial court erred in: (1) admitting evidence of the out-of-court identification of the defendant made by three witnesses in that they were derived from unnecessarily suggestive procedures and were unreliable; (2) permitting the in-court identification of the defendant by those three witnesses since they were made with the assistance of their improper out-of-court identifications; (3) excluding from evidence a response from one of the three identification witnesses regarding whether she had previously identified a photograph of a person other than the defendant as the perpetrator of the crime; and (4) failing to instruct the jury concerning standards for assessing eyewitness identification testimony. 1

The jury could reasonably have found the following facts: On June 8, 1978, at approximately 3 p.m., two black males entered Crandall's Package Store in New London. One of the two, the defendant, approached the counter behind which one of the package store employees, Shirley A. Santangelo, was standing. When Santangelo looked up, the defendant was standing about two steps away from her pointing a pistol at her. He told her that "this is a holdup" and he cocked the hammer on the pistol. The defendant then moved toward Elizabeth LaPlante, the proprietor of the store. He placed his arm around LaPlante and moved his hand up and down her side apparently frisking her. The defendant told LaPlante to go behind the counter and take the money out of her cash drawer. LaPlante did this, placing the money in a paper bag. At this time, the other black male, who was also armed, was near the front door. After LaPlante emptied the cash drawer, the defendant insisted that there was more money in the store, although he had been told otherwise, and he threatened to hit LaPlante if she did not give him more money. The defendant was then distracted by a noise and customers who had entered the store. The defendant then ordered LaPlante, Santangelo, and the customers into a room in the back of the store. He told them to put their wallets and the contents of their pockets into the bag containing the money from the cash drawer, and the victims did so. At about this time, Donald Barry, an off duty state trooper who was approaching the entrance to a bar located next to the package store, became aware that "something [was] going on at the package store...." As Barry approached the front of the store, the defendant's accomplice pulled a gun on him and ordered Barry into the store. After a period in the front portion of the store, he joined the other victims in the back room. The defendant then ordered everyone in the back room to lie on the floor and not to move for several minutes. The victims complied with this demand and the defendant and his accomplice left the store.

After the robbery had occurred, police officers arrived at the package store and a brief description of the events was taken by Officer Glenn Davis of the New London police department. Santangelo described one of the perpetrators, the defendant, to Davis as being a short, stocky black male, approximately five feet ten inches, and gave a description of his clothing. LaPlante "verified" this description. This description was included in Davis' written report of the robbery. 2 Barry described one of the perpetrators to the police as a black male, about twenty-five to thirty years old, with a stocky build, approximately five feet eight inches, close-cropped hair and a receding hairline.

Later that day, Santangelo went to the New London police station where she viewed approximately six hundred to seven hundred mug shots without making an identification. Approximately two weeks later, Santangelo viewed a series of approximately one hundred slides at the Norwich police station without making an identification. Barry also viewed in excess of one hundred slides at the Norwich police station without making an identification.

Some months thereafter, in December, 1978, Detective Walter Petchark of the New London police department assembled an array of seven photographs, one of which included a photograph of the defendant, and he brought the array to the package store for LaPlante and Santangelo to examine. Petchark showed the array first to LaPlante, who made a "tentative" 3 identification of the defendant's profile photograph. Later that day, Petchark also showed the array of photographs to Santangelo and she identified the defendant's photograph as a photograph of one of the perpetrators. Barry also made an out-of-court photographic identification of the defendant in December, 1978. This resulted from a visit to the Groton police station where, after viewing some photographs of black males which were located on a table, he identified the defendant's photograph as a photograph of one of the perpetrators of the robbery in question.

Subsequent to their out-of-court photographic identifications of the defendant, LaPlante and Santangelo observed the defendant at grand jury proceedings held in March and August, 1979, and both identified the defendant, who was present at those proceedings, as one of the perpetrators. Barry also observed and identified the defendant at the August proceedings. All three identified the defendant at trial before the jury.

I

We first address the defendant's claim that the out-of-court identifications resulted from unnecessarily suggestive procedures and were unreliable. 4 Specifically with regard to LaPlante's out-of-court photographic identification, the defendant asserts that the photographs in the array presented to her by Petchark were unnecessarily suggestive and that because LaPlante had not viewed any mug shots regarding the robbery for nearly six months "it had to be unavoidably apparent to her that ... Petchark [showed her the array] because he thought there was a likely suspect among the seven subject pictures." He also asserts that her identification of the defendant at his grand jury proceedings was "unquestionably suggestive." The defendant incorporates by reference these same claims regarding Santangelo's out-of-court identifications of the defendant and he further claims that Santangelo's photographic identification was unnecessarily suggestive because when she viewed the array of photographs assembled by Petchark, she was aware that LaPlante had already made a tentative identification of one of the photographs. Concerning the asserted suggestiveness of Barry's photographic identification, the defendant points to the circumstance that Barry knew that the person in the photograph had been recently arrested for another charge; that six to seven months had elapsed since Barry had been asked to identify any photographs; and that no explanation has been offered as to why a physical lineup was never conducted or why a photographic array was not assembled. The defendant also points to the "suggestiveness inherent" in Barry's identification of the defendant at the grand jury proceedings.

A

Regarding the photographic identifications, we point out initially that our cases make it clear that a conviction which is based upon an in-court identification which follows an out-of-court photographic identification will be set aside " ' "If the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).' State v. Anderson, 178 Conn. 287, 291, 422 A.2d 323 (1979)." State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983); State v. Vass, 191 Conn. 604, 609, 469 A.2d 767 (1983); State v. McKnight, 191 Conn. 564, 570, 469 A.2d 397 (1983). A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure. State v. Vass, supra, 608; State v. McKnight, supra; State v. Kinsey, 173 Conn. 344, 345-46, 377 A.2d 1095 (1977). The required constitutional 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." ' " State v. Doolittle, supra, quoting State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); State v. Vass, supra, 608-609, 469 A.2d 767; State v. McKnight, supra, 569, 469 A.2d 397.

We find no merit to the defendant's claim of unnecessary suggestiveness regarding the photographic identifications by LaPlante and Santangelo. Preliminarily, with regard to his claim that it must have been "unavoidably apparent" to both LaPlante and Santangelo that because they had not viewed mug shots in relation to this robbery for about six months, a likely suspect was among those pictured in the array, we note: "It has been generally recognized that the presentation of several photographs to witnesses, including that of the suspect--the basic procedure used by the police in this case--is by itself a nonsuggestive and constitutionally acceptable practice, in the absence of any unfairness or other impropriety in the conduct of the exhibit." State v. Hafner, 168 Conn. 230, 237, 362 A.2d 925, ...

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