State v. Hamele

• Citation: 449 A.2d 1020,188 Conn. 372
• Court: Supreme Court of Connecticut
• Decision Date: 14 September 1982
• Parties: STATE of Connecticut v. Edward HAMELE, Jr.

Page 1020

449 A.2d 1020

188 Conn. 372

STATE of Connecticut v. Edward HAMELE, Jr.

Supreme Court of Connecticut.

Argued June 8, 1982.

Decided Sept. 14, 1982.

[188 Conn. 373] Richard A. Fuchs, Bridgeport, for appellant (defendant).

Donald A. Browne, State's Atty., with whom, on the brief, was Frank S. Maco, Asst. State's Atty., for appellee (state).

Before SPEZIALE, C. J., and HEALEY, PARSKEY, ARMENTANO and SHEA, JJ. SPEZIALE, Chief Justice.

After a trial to a jury of six, the defendant, Edward J. Hamele, Jr., was found guilty of burglary in the first degree in violation of General Statutes § 53a-101(a)(1), robbery in the first degree in violation of General Statutes § 53a-134(a)(2), sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2), and two counts of unlawful restraint in the second degree in violation of General Statutes § 53a-96. From the judgment rendered on the verdict, the defendant has appealed claiming that the trial court erred (1) in refusing to exclude identification testimony because of a suggestive pretrial show-up; (2) in refusing to exclude testimony regarding physical evidence which was destroyed by the police; and (3) in refusing to exclude all reference to the defendant's prior criminal record. We find no error.

The jury reasonably could have found the following facts: At approximately 4:30 a.m. on May 14, 1977, the victims, a husband and wife, were awakened by an intruder in their Westport home. The intruder, who was carrying a gun and a flashlight, demanded money. After obtaining some money from the victims, the intruder forced the female victim to tie her husband with some stockings. After obtaining more money from the female victim's purse, the intruder then sexually assaulted her by forcing her to perform an act of oral sex. Following this, the female victim was also tied. A few minutes later the intruder left and the male victim called the police after freeing himself from his restraints. Because it was dark the victims had not been able to get a good look at the intruder's face, but were able to give the police a description of his general appearance, including his clothes, and of his voice, which was particularly distinctive in the pronunciation of certain words.

The defendant was stopped in his car a few minutes later by a Westport police officer about two and one-half miles from the victims' home. The officer observed that the defendant matched the description of the intruder which he had heard on the police broadcast regarding the incident. The officer found a gun and a flashlight in the defendant's car. After reading him his rights, the officer then took the defendant to the scene of the crime.

While at the victims' home, the defendant was shown to the victims three times. Each time the defendant was asked to stand outside of an exterior screen door so that the victims could observe him. During two of these show-ups, the defendant was asked to speak certain words which the intruder had spoken. The female victim, though unable to identify the defendant's face, made a positive identification of the defendant as the intruder based upon his build, dress, voice, and diction. The male victim was unable to make a positive identification, though he noted similarities between the defendant and the intruder.

I IDENTIFICATION TESTIMONY

The defendant contends that the trial court erred in denying his motion to suppress the identification testimony of the victims because such testimony was tainted by an unnecessarily suggestive show-up.

During trial, both victims testified. As previously noted, only the female victim was able to identify positively the defendant during the show-up. No in-court identification of the defendant as the intruder was made. In court both victims identified the defendant only as the man they had been shown at their home a short time after the incident. Both victims testified about the show-up at the scene and the female victim testified that she had made a positive identification of the defendant at that time. She testified that because of the darkness she was unable to see the intruder's face, but that at the time of the show-up she was able to identify the defendant as the intruder by his build, dress, voice, and diction.

"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 Although there is no question that the show-up employed in this case was suggestive, there is some question as to whether the show-up was " 'so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law.' " (Emphasis added.) Neil v. Biggers, supra, 196, 93 S.Ct. 380. " 'Without question, almost any one-to-one confrontation between a victim of crime and a person whom the police present to [the victim] as a suspect must convey the message that the police have reason to believe him [or her] guilty....' United States ex rel. Kirby v. Sturges, 510 F.2d 397, 403 (7th Cir.) [cert. denied, 421 U.S. 1016, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975) ]." State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976). "On the other hand, we must also consider that prompt on-the-scene confrontations tend under some circumstances to ensure accuracy. [United States ex rel. Kirby v. Sturges, supra], 404: Bates v. United States, 405 F.2d 1104, 1106 (D.C. Cir. [1968] ... [and that] the benefits of promptness not only aid reliability but permit a quick release of an innocent party if there is no positive identification and allow the police to resume the investigation with a minimum of delay. Washington v. United States, 334 A.2d 185 (D.C. App. [1975]." Ibid.; see State v. Willin, supra, 251-52, 413 A.2d 829; see also United States v. Rice, 652 F.2d 521, 528 (5th Cir. 1981); Frank v. Blackburn, 605 F.2d 910, 912 (5th Cir. 1979), cert. denied, --- U.S. ----, 102 S.Ct. 148, 70 L.Ed.2d 123 (1981).

                must be determined whether the identification procedure was [impermissibly and] 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. Brown, 187 Conn. 602, 614-15, 447 A.2d 734 (1982);   State v. Ledbetter, 185 Conn. ---, ---, ---, 441 A.2d 595 (1981);   State v. Gordon, 185 Conn. ---, ---, ---, 441 A.2d 119 (1981), cert. denied, --- U.S. ----, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982);  State v. Packard, 184 Conn.  (42 CLJ 48, pp. 5, 6) 439 A.2d 983 (1981);   State v. Gold, 180 Conn. 619, 656-58, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980);   State v. Anderson, 178 Conn. 287, 291, 422 A.2d 323 (1979);   State v. Piskorski, 177 Conn. 677, 741, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979);   State v. Willin, 177 Conn. 248, 251-52, 413 A.2d 829 (1979);   State v. Smith, 165 Conn. 680, 684, 345 A.2d 41 (1974);  see also  Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977);   Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)
                

In this case, the show-up occurred at the crime scene during the earlier morning hours not long after the incident and the defendant's arrest. It was important under the facts of this case for the police to determine quickly whether they had taken the right person into custody. The defendant had made no incriminating statements; in fact, he had protested his innocence, and no items of personal property readily identifiable as coming from the victims' home were found in the defendant's possession. Under these circumstances we cannot conclude that the suggestive show-up employed in this case was impermissibly or unnecessarily so. See State v. Willin, supra, 177 Conn. 252, 413 A.2d 829; State v. Middleton, supra.

In any event, the challenged testimony was admissible under the second prong of our inquiry--reliability. Identification testimony is still admissible so long as, under all of the circumstances, the identification is reliable. State v. Brown, supra; State v. Ledbetter, supra; State v. Gordon, supra; State v. Packard, supra; State v. Theriault, supra; State v. Piskorski, supra. "The factors to be considered in determining the reliability of an identification 'include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his [or her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors Here, the female victim had ample opportunity to view the intruder's build, dress, voice, and diction, by which she identified the defendant; her degree of attention was high enough to give a detailed and accurate description of the intruder which allowed the police to take him into custody; she was positive about the identification after she heard the defendant speak; and the time between the incident and the confrontation was no more than two hours. The male victim never made a positive identification of the defendant, but he had the opportunity to observe and attend to those characteristics of the intruder which were similar to those of the defendant. Moreover, the potential corrupting effect of the suggestive show-up does not seem to have occurred as neither victim claimed to be able to identify positively the defendant by his facial features which they had the opportunity to view only during the show-up.

                is to be weighed the corrupting effect of the suggestive identification itself.'   Manson v. Brathwaite, supra, 432 U.S. 114, 97 S.Ct. 2253 (citing  Neil v. Biggers, supra, 409 U.S. 199-200, 93 S.Ct. 382-383)."   State v. Piskorski, supra, 177

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