State v. Hafner

• Citation: 168 Conn. 230,362 A.2d 925
• Parties: STATE of Connecticut v. Richard L. HAFNER.
• Decision Date: 25 March 1975
• Court: Supreme Court of Connecticut

Page 925

362 A.2d 925

168 Conn. 230

STATE of Connecticut v. Richard L. HAFNER.

Supreme Court of Connecticut.

March 25, 1975.

Certiorari Denied Oct. 6, 1975. See 96 S.Ct. 95.

Juri E. Taalman, Norwich, for appellant (defendant).

C. Robert Satti, Asst. State's Atty., with whom, on the brief, was Edmund W. O'Brien, State's Atty., for appellee (state).

Before HOUSE, C.J., and COTTER, LOISELLE, MacDONALD and LONGO, JJ.

COTTER, Associate Justice.

The defendant was found guilty by a jury of rape and simple assault and has appealed from the judgment. ¹ Error has been assigned in several of the court's rulings on his objections to the admissibility of evidence, and on his motions made during and after completion of the trial, and in the court's refusal to find certain facts set forth in the draft finding.

A brief summary of the evidence at the outset is appropriate to place the claims of error in perspective before reviewing them in detail. From the evidence offered the jury could have found the following: The complaining witness and her girl friend were walking home on State Street in New London about 1:00 a.m. on August 30, 1970, when a man in an automobile stopped and asked them if they wanted a ride. The girls consented, entered the car and sat on the front seat, the complaining witness next to the driver and her girl friend near the door. The driver asked the girls if they would like to go to a party in Montville; they declined, whereupon he dropped the girl friend off at her house.

The driver refused to take the road to the complaining witness's home as she directed him. She then jumped out of the car and tried to escape, but he forced her back into the car. He thereupon drove some distance away, pulled into a dirt road and stopped near a white brick building. She jumped out of the car a second time, but again the driver forced her back inside. He proceeded some distance further to a different wooded area and made her leave the car. With a putty knife in hand, he threatened to kill her, took her clothes off and had intercourse with her. Afterwards, he forced her to put her clothes back on and drove her to a park two blocks from her home, where she was released.

The complaining witness entered her home about 3:00 a.m., screaming and hysterical, two hours after she and her girl friend had met the driver of the car, and told her mother and brother what had happened. Later that morning she went to the Waterford police department, told them her story, and described her assailant. That same day she went to a doctor who examined her and determined that she was bruised and had had intercourse.

About a week after the incident, the two girls were shown photographs by the police for identification purposes; at that time the defendant's picture was not among those examined, and neither girl identified anyone in the photographs. Approximately seven months later, on March 24, 1971, the girl friend identified a picture of the defendant from an array of photographs as the man who had picked them up; later that day, the complaining witness identified the same photograph of the defendant. At the trial, the complaining witness identified the defendant in court as the man who picked her up in the car, assaulted and raped her; her girl friend likewise at trial identified him as the man who had given them the ride.

I

We first consider the defendant's assignment of error concerning the court's denial of his motion to suppress evidence of the pre-trial photographic identification of the defendant by the two girls, and their subsequent in-court identification of the defendant. In this motion, the defendant alleged that the photographic identification procedure used by the police violated his rights under the due process clause of the fourteenth amendment to the United States constitution, ² in that it was 'impermissibly' suggestive and gave rise to a substantial likelihood of irreparable misidentification; accordingly he requested the court to suppress evidence pertaining to the photographic identification of the defendant by the two girls as well as any subsequent identification of him by these witnesses 'tainted' by the earlier procedure. In the absence of the jury, the court received evidence necessary to decide the motion. The defendant had the initial burden thereunder of proving to the satisfaction of the trial court that the photographic identification was somehow unconstitutional. See State v. Mariano, 152 Conn. 85, 91, 203 A.2d 305, cert. denied, 380 U.S. 943, 85 S.Ct. 1025, 13 L.Ed.2d 962; cf. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307. We need not consider the defendant's challenge to the accuracy of the court's special finding of facts relating to the motion, since they are supported by the evidence. The court denied the motion and admitted into evidence the photographs used by the police in the identification prior to trial, the testimony by the two girls and the police concerning this identification procedure, and the in-court identification of the defendant by the two girls.

In its seminal opinion this area of the law of criminal procedure, the United States Supreme Court held that the use of out-of-court police identification procedures may give rise to a claimed violation of due process of law if the conduct of the procedure in a given instance was 'unnecessarily suggestive and conducive to irreparable mistaken identification,' a claim whose adjudication, however, '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. Under this theory, appellate courts are in reality at liberty to assess the merits of a defendant's allegations of a constitutional impropriety in the methods of identification used by the police to help secure his conviction on a purely ad hoc basis, a power which has been criticized as antagonistic to the development of 'permanent constitutional standards' in this area. Ibid., 306, 87 S.Ct. 1967 (Black, J., dissenting). Significantly, the exercise of this power by the Supreme Court itself in particular cases has generated a series of judicial opinions notable for their lack of harmony. See, e.g., Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 34 L.Ed.2d 401 (Brennan, Douglas, and Stewart, Js., concurring in part and dissenting in part; opinion by Brennan, J.); Coleman v. Alabama, 399 U.S. 1, 11, 90 S.Ct. 1999, 26 L.Ed.2d 387 (Black, J., concurring); Ibid., 19 (Harlan J., concurring in part and dissenting in part); Foster & California,394 U.S. 440, 449, 89 S.Ct. 1127, 22 L.Ed.2d 402 (White, Harlan, and Stewart, Js., concurring; opinion by Fortas, J.); ibid. (Black, J., dissenting); Simmons v. United States, 390 U.S. 377, 395, 399, 88 S.Ct. 967, 19 L.Ed.2d 1247 (Black, J., and White, J., concurring in part and dissenting in part in separate opinions). Nonetheless, the Supreme Court has consistently reaffirmed, in the majority and plurality opinions in the cases heretofore cited, the 'totality of the circumstances' doctrine as the theory appropriate to the review of claims such as those raised by the defendant in this assignment of error; we are bound by what that court has said the law is. See Marbury v. Marison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60; see also Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 372, 4 L.Ed. 97.

A

In Neil v. Biggers, supra (a case involving facts which arose prior to the decision in Stovall v. Denno, supra) the court, continuing its analysis of the constitutionality of pre-trial identification procedures, stated that the 'standard for the admissibility of testimony concerning the out-of-court identification' is whether the exhibit was so unnecessarily suggestive as to give rise to a very substantial likelihood of misidentification. Ibid., 409 U.S. 198, 93 S.Ct. 375. 'Suggestive . . . (identification procedures) are disapproved because they increase the likelihood of misidentification and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.' Ibid. In that case, however, the court declined to adopt a per se exclusionary rule and held that testimony relating to a pre-trial identification procedure deemed to have been 'unnecessarily suggestive' may still be admissible if, under the 'totality of the circumstances,' the identification itself was 'reliable.' Ibid., 199, 93 S.Ct. 375.

We consider first whether the pre-trial photographic identification procedure used by the police was either 'impermissibly' or 'unnecessarily' suggestive. Neil v. Biggers, supra; Simmons v. United States, supra; Stovall v. Denno, supra. 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 non-suggestive and constitutionally acceptable practice, in the absence of any unfairness or other improperty in the conduct of the exhibit. See, e.g., Simmons v. United States, supra, 382-84, 88 S.Ct. 967; cases collected in the annotation in 39 A.L.R.2d 1000, 1006-12 and in A.L.R.2d Supplement Service. The presence of a variety of other factors affecting the exhibit of photographs has however been accorded considerable importance as bearing on the issue of suggestiveness; the entire factual situation is taken into account in determining whether by demonstrating the presence of these factors the defendant has proved to the court's satisfaction that the procedure as a whole was so suggestive as to influence unfairly the witness in his choice. Among such factors which are relevant to this case are whether the police showed the witness pictures of several persons among which the photograph of a single such individual is in some way emphasized; Simmons v. United States, supra, 390 U.S. 383, 88 S.Ct. 967; In the Matter of James H. (Anonymous), 34 N.Y.2d 814, 816, 359...