State v. Harden

• Citation: 175 Conn. 315,398 A.2d 1169
• Court: Supreme Court of Connecticut
• Decision Date: 27 June 1978
• Parties: STATE OF CONNECTICUT v. JOHN HARDEN

175 Conn. 315

398 A.2d 1169

STATE OF CONNECTICUT v. JOHN HARDEN

Supreme Court of Connecticut.

Argued March 8, 1978.

Decision released June 27, 1978.

COTTER, C. J., LOISELLE, BOGDANSKI, LONGO and HEALEY, JS.

Louis S. Avitabile, special public defender, for the appellant (defendant).

Joseph A. Hill, assistant state's attorney, with whom, on the brief, were Francis M. McDonald, state's attorney, and Bradford J. Ward, assistant state's attorney, for the appellee (state).

COTTER, C. J.

The defendant was convicted after trial to a jury of burglary in the second degree, in violation of General Statutes § 53a-102, and rape in the first degree, in violation of General Statutes § 53a-72.¹ His motion to set aside the verdict was denied, and from the judgment rendered on that verdict he has appealed.

From the evidence, the jury could have found the following facts: At about 1 a.m. on August 9, 1974, the victim was alone in her Waterbury apartment when she was physically assaulted by the defendant, John Harden, who was hiding in her bathroom. After threatening to kill her, the defendant grasped the victim's throat and forced her to have sexual intercourse with him. She scratched him on the hand during the course of this assault, and had a number of opportunities to view his face. After having intercourse with the victim, Harden cleaned his body with a yellow tissue from the bathroom and then left the apartment.

The victim called the police at about 2:13 a.m. and, when they arrived, described her assailant as a muscular black male about 5 feet 3 inches tall, about 20 years old with a medium Afro haircut, and wearing a black tee shirt, dungarees and white sneakers. The defendant was apprehended by Waterbury police at approximately 2:25 a.m. about three blocks away from the victim's apartment. He was breathless and fit the description given by the victim. When apprehended, he had a slight laceration on his left hand.

Subsequently, Harden was taken to the police station, where the police removed from his pocket a yellow tissue containing two hairs. The state's expert witnesses testified that one of the hairs exhibited the same characteristics as the victim's head hairs, and the yellow tissue had the same class characteristics as those found in the victim's apartment.

I

The initial assignment of error pursued by the defendant in his brief is that the court erred in its charge to the jury regarding identification testimony. Specifically, he claims that the court committed reversible error in refusing to instruct the jury as requested regarding the guidelines to be followed in assessing such testimony and the possible dangers of suggestion inherent in certain identification procedures.

After the defendant was apprehended, and prior to his arrival at the police station, he was returned to the street in front of the victim's apartment where she identified him as her assailant. At trial, she made an in-court identification of the defendant and was subjected to an extensive cross-examination regarding the factors upon which she based her identification of the defendant as her attacker. The trial court denied the defendant's pretrial motion to suppress identification evidence of the defendant at any subsequent courtroom identification, ruling that the state had established by clear and convincing evidence that the in-court identification arose from circumstances other than the confrontation on the street following the apprehension of the defendant by police. Although no pretrial ruling was made by the court regarding the admissibility of the out-of-court identification, the state did not offer any evidence of this earlier identification at trial. The defendant, however, elicited testimony regarding the out-of-court identification. The defendant, in his appeal, does not challenge the propriety of the court's denial of his motion to suppress identification testimony;² rather, he directs his argument on this issue to the court's failure to charge as requested.

The court instructed the jury that they "must be satisfied beyond a reasonable doubt of the accuracy of this identification," and that "if the circumstances of the identification are not convincing beyond a reasonable doubt, you must find this accused not guilty on both of these counts." It emphasized the heavy burden placed upon the state to prove that the defendant was "the very same person" who committed the crimes as charged, and cautioned that "the matter of identification of this accused as made by the complaining witness is of the utmost importance." The jury were further instructed to consider carefully the defendant's testimony, his alibi and denial, and all other evidence relating to the question of identification.

Although the defendant concedes that the charge as given "stressed the importance of identification," he claims it was error for the court to refuse his requests for an instruction on identification "complete with guidelines of the suggestive dangers of identification confrontations."³ The dangers inherent in the area of identification testimony are well known and were examined in detail by the Supreme Court in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (pretrial lineup), and Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (photographic display). As a result, a number of federal circuit courts have considered the need for a detailed charge on the fallibility of eyewitness identification. While some of those courts have decided that such a charge is to be used in the discretion of the court based upon the circumstances of a particular case; Barber v. United States, 412 F.2d 775 (5th Cir.); Cullen v. United States, 408 F.2d 1178 (8th Cir.); McGee v. United States, 402 F.2d 434 (10th Cir.), cert. denied, 394 U.S. 908, 89 S. Ct. 1020, 22 L. Ed. 2d 220; others, acting in their supervisory capacity over the district courts, have endorsed the use of a model jury instruction in applicable cases. See, e.g., United States v. Holley, 502 F.2d 273, 277-78 (4th Cir.); United States v. Telfaire, 469 F.2d 552, 558-59 (D.C. Cir.); United States v. Barber, 442 F.2d 517, 528 (3d Cir.). Nevertheless, even those courts which encourage the use of a specific charge would allow the trial court wide latitude to modify the model instruction contingent upon the circumstances surrounding a particular case. United States v. Holley, supra, 275; United States v. Barber, supra, 527-28.

Although it would be preferable for a court to charge the jury regarding the dangers of misidentification in an appropriate case, especially when such an instruction is requested, we note with approval the posture of the Second Circuit (Friendly, J.) on this question: "While a defendant is not entitled to a reading of all that was said about the dangers of misidentification in United States v. Wade 388 U.S. 218, 228-36, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 and Simmons v. United States 390 U.S. 377, 383-84, 88 S. Ct. 967, 19 L. Ed. 2d 1247, we would think it reasonable that a properly drafted instruction, drawing particularly on Mr. Justice Harlan's language in Simmons, should be given if requested. Whether failure to do so would constitute reversible error would depend upon the circumstances." United States v. Fernandez, 456 F.2d 638, 643-44 (2d Cir.); see also United States v. Evans, 484 F.2d 1178, 1187-89 (2d Cir.).

The ultimate test of a court's instructions is whether, taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law. State v. Mullings, 166 Conn. 268, 274-75, 348 A.2d 645; Szlinsky v. Denhup, 156 Conn. 159, 163, 239 A.2d 505.

The factual circumstances in the present case contain none of the special difficulties often presented by identification testimony since the conviction of the defendant did not turn upon the testimony of eyewitnesses who were uncertain, unclear or inconsistent. Here, the victim had sufficient time and adequate opportunity to observe her assailant; she gave a detailed description of the accused to the police within minutes after the incident; there was no photographic identification involved; and the victim gave a positive in-court identification of the defendant based on her observations of the assailant during the hour-long ordeal.

The trial court is not under a duty in a criminal proceeding to charge in the identical language requested if its charge is accurate, adequate and, in substance, properly includes material portions of the defendant's request; its responsibility is performed when it gives instructions to the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration, under the offenses charged and upon the evidence, and when its instructions are suited to their guidance in the determination of those issues. State v. Bennett, 172 Conn. 324, 329-32, 374 A.2d 247. The trial court's refusal to include, in this case, the defendant's request for a special identification instruction cannot be said to have prejudiced the defendant's defense in view of the factual circumstances related above as well as the fact that it was the defendant who introduced evidence of the outof-court identification. See Bansak v. Pawelczyk, 173 Conn. 520, 523, 378 A.2d 569; State v. Kinsey, 173 Conn. 344, 349, 377 A.2d 1095.

II

The defendant next claims error in the court's failure to charge that the defendant could be found guilty of the crime of sexual misconduct in the second degree as a lesser included offense of rape in the first degree.⁴

"The test for determining whether one violation is a lesser included offense in another violation is whether it is possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser. If it is possible, then the lesser violation is not an...