State v. Holliman

• Decision Date: 20 February 1990
• Docket Number: No. 13625,13625
• Citation: 570 A.2d 680,214 Conn. 38
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Larry HOLLIMAN.

Page 680

570 A.2d 680

214 Conn. 38

STATE of Connecticut v.Larry HOLLIMAN.

No. 13625.

Supreme Court of Connecticut.

Argued Dec. 7, 1989.

Decided Feb. 20, 1990.

Katherine C. Callahan, with whom, on the brief, was Paul R. Kraus, Hartford, for appellant(defendant).

Timothy J. Sugrue, DeputyAsst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and James G. Clark, Asst. State's Atty., for appellee(state).

Before ARTHUR H. HEALEY, SHEA, GLASS, COVELLO and HULL, JJ.

HULL, Justice.

A jury found the defendant guilty of sexual assault in the first degree in violation of General Statutes § 53a-70(a), ¹ robbery in the first degree in violation of General Statutes § 53a-134(a)(1), ² and kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A).³The trial court thereupon sentenced him to a total effective sentence of forty years incarceration.On appeal from this judgment, the defendant claims that the trial court erred in: (1) denying his pretrial motion to supress the victim's identification; (2) failing to exclude the victim's identification on the ground that its prejudicial effect outweighed its probative value; and (3) admitting at trial certain irrelevant and prejudicial testimony of a witness.We find no error.

The jury could reasonably have found the following facts.At approximately 8 p.m. on March 11, 1988, the victim, J, left her home in West Haven to walk to the nearby Nutmeg Farms Store to buy groceries for her mother.To get from her house to the store, J took a short cut through a wooded area that led to the back of the store.As she entered the Nutmeg Farms Store, a man, later identified as the defendant, who was sitting in a car parked on the side of the building, beeped the car's horn at her.J paid little attention to the defendant and proceeded into the store to buy the groceries.After making her purchases, J walked out of the building and toward the path to return home.She noticed that the defendant was no longer in his car.

Although it was dark outside, flood lights dimly illuminated the rear area of the store.As J reached the edge of the building, she saw the defendant emerge suddenly from between two storage trailers kept behind the store.The defendant immediately struck J in the face and began choking her.He then pressed a screwdriver to her neck and told her that if she did not shut up he would kill her.After dragging her to the darker area between the two storage trailers, the defendant sufficiently undressed J to fondle her breasts and place his fingers in her vagina.He then engaged in vaginal intercourse with her.The defendant ultimately fled from the area, taking with him J's groceries and approximately $12.30.

J then walked along the path to her home and police were summoned.Thereafter, she went to Yale-New Haven Hospital where physical evidence confirmed that she had been sexually assaulted.

Since the process by which J identified the defendant as her assailant is central to each of the defendant's claims on appeal, we will detail the facts of the identification.On the afternoon of March 11, 1988, the day that J was assaulted, A, a friend of J's sister, was in the Nutmeg Farms Store.As she left the store, she walked past the defendant, then unknown to her, who was with some friends and was putting gas into his car.The defendant, in an attempt to engage A in conversation, asked her her name, where she lived, if she wanted to go out, and if she wanted some beer.While testifying at trial, A characterized the defendant's behavior as a "pass."She ignored the defendant and walked away.As she headed home, however, she saw the defendant following her in his car.Later that evening, before 8 p.m., the defendant rang the doorbell at A's house.A looked out the window, recognized the defendant as the person whom she had earlier seen at the Nutmeg Farms Store, and told him to leave.The defendant returned to his car and then drove away.

Approximately fifteen minutes later, A walked to the Nutmeg Farms Store to use the public telephone that was located outside the store.When she arrived at the store, she saw the defendant's unoccupied car parked near the woods.As A was preparing to use the telephone, she thought that she heard noises in the woods.Frightened by the noises, she called a friend who came to the store to give her a ride.When A learned the next day that J had been attacked the previous evening in the vicinity of the woods behind the Nutmeg Farms Store, she immediately suspected the defendant.

On April 2, 1988, at approximately 10 a.m., A again saw the defendant at the Nutmeg Farms Store.The defendant was getting gas and had several women and children in his car.When he noticed A, the defendant turned his head and tried to avoid her.A immediately called J's house and J's sister and father drove to the store.By the time they arrived, however, the defendant had driven away in the direction of the town of Orange.A consequently got into the car with J's sister and father, and they drove off in search of the defendant.Shortly thereafter, they located the defendant's car in the parking lot of the Stop and Shop supermarket in Orange.The defendant was alone in the car.A and the others decided to go back to West Haven to get J.

When they returned with J to the Stop and Shop parking lot, A pointed to the defendant and asked J: "[I]s that the guy?"After A repeatedly asked J if the defendant was the man who had assaulted her, J indicated that he was.J also recognized the defendant's car as the one that had been parked outside the Nutmeg Farms Store on the night of her assault.A, J and the others waited for the defendant's companions to emerge from the supermarket, and then followed the car to a post office in New Haven.When the defendant went inside the post office, A, falsely identifying herself as J's sister, called the New Haven police.

New Haven police officer Robert Crisci was sent to the area of the post office to see a female about a sexual assault.He was met by either J's sister or A who described the defendant's car and told Crisci that the defendant had been involved in a sexual assault.Crisci eventually followed the defendant's car a short distance and pulled it over.The defendant was arrested after a brief foot chase as he fled from the scene.

I

The defendant first claims error in the trial court's failure to suppress J's pretrial identification of him as the man who had assaulted her on March 11, 1988.The defendant filed a motion to suppress the identification prior to the commencement of trial.Following an evidentiary hearing, the court denied the motion, concluding that there was no indication of "anything impermissibly suggestive on the part of [the] police in this matter."The defendant argues that the identification procedure conducted by A was unnecessarily suggestive and that J's resulting identification was so unreliable that its admission into evidence at trial deprived him of his right to due process of law as guaranteed by the fourteenth amendment to the United States constitution.

A

The defendant asserts a violation of his rights under the due process clause of the fourteenth amendment to the United States constitution.This amendment provides in pertinent part that "[n]o State shall ... deprive any person of life, liberty or property, without due process of law."(Emphasis added.)The state contends that the defendant's claim is not cognizable under this provision.We agree.

"Because the [fourteenth][a]mendment is directed at the states, it can be violated only by conduct that may be fairly characterized as 'state action.' "Lugar v. Edmondson Oil Co., 457 U.S. 922, 924, 102 S.Ct. 2744, 2747, 73 L.Ed.2d 482(1982)."[T]he Fourteenth Amendment, which prohibits the states from denying federal constitutional rights and which guarantees due process, applies to acts of the states, not to acts of private persons or entities."Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S.Ct. 2764, 2769, 73 L.Ed.2d 418(1982)."The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause."Colorado v. Connelly, 479 U.S. 157, 166, 107 S.Ct. 515, 521-22, 93 L.Ed.2d 473(1986);seeState v. Villafane, 171 Conn. 644, 657-58, 372 A.2d 82(1976), cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558(1977), overruled in part, State v. Stepney, 191 Conn. 233, 464 A.2d 758(1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772, reh. denied, 466 U.S. 954, 104 S.Ct. 2163, 80 L.Ed.2d 547(1984)(purely spontaneous on-street confrontation between the defendant and a witness to a holdup was not conducted by the police and thus did not violate the defendant's right to due process);State v. Nims, 8 Conn.App. 631, 637, 513 A.2d 1280, cert. denied, 201 Conn. 812, 516 A.2d 887(1986)(the viewing of the defendant while he was awaiting trial by a witness to the incident in question was not prearranged and was not in any way contrived by the police or the prosecuting authority and thus did not violate the defendant's right to due process).

Notwithstanding this precedent, the defendant claims that the right to due process may be implicated by unnecessarily suggestive pretrial identification procedures even in the absence of state action.The defendant relies as authority for his position primarily on Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140(1977).According to the defendant, the early United States Supreme Courtcases concerning the exclusion of identifications obtained through unnecessarily suggestive pretrial identification procedures;Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199(1967);Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178(1967);United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149...