State v. Johnson
| Decision Date | 13 February 1981 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. John J. JOHNSON, Jr. |
Robert G. Zanesky, Westport, for appellant (defendant).
Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were Walter D. Flanagan, State's Atty., and Martin A. Rader, Asst. State's Atty., for appellee (state).
Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.
After trial to a jury, the defendant was convicted of robbery in the second degree. General Statutes § 53a-135. 1 The defendant has assigned error in the trial court's rulings on his motion to suppress and regarding the admissibility of certain evidence.
The evidence presented established the following facts. At approximately 9:45 a. m. on August 15, 1978, a young male wearing a green army shirt with cut-off sleeves and dark pants entered the "Pants And" store located in the North Street Shopping Center in Danbury. After lingering in the store for several minutes, the man ordered the sales clerk to "Give me all your money." The clerk saw what appeared to be a knife in the assailant's hand. She placed approximately forty dollars on the counter. He took the money, put it in his pocket and left the store, driving away in a blue car.
Later on the same day, the victim viewed a large number of mug shots at the Danbury police headquarters. Although the defendant's picture was among those in the series of photographs, she was unable to identify the assailant.
On August 29, 1978, detectives Carvalho and Tierney of the Danbury police stopped a gray Chevrolet operated by the defendant accompanied by one passenger. The details of this automobile chase and apprehension of the defendant are set forth in our preceding opinion in State v. Johnson, --- Conn. ---, 438 A.2d 851 (1981), and will not be further elaborated at this time. The defendant's car was searched while in custody at the police station and a green army fatigue shirt and a pair of sunglasses were found. The shirt was found in the trunk and the sunglasses were discovered in the glove compartment. The defendant moved to suppress the evidence seized in the search at the police station and took exceptions to a denial of the motion and introduction of the seized items at trial.
Detective Brevard telephoned the victim on August 30, 1978. He told her that a suspect was in custody and that she should come to police headquarters to view some photographs. When the victim arrived, she was seated at Brevard's desk facing six photographs. Lying on an adjacent desk was a color photograph of the defendant as well as the army shirt, the sunglasses and a knife. The victim eliminated all but one of the black and white photographs from consideration, but was unable to decide whether the one photo remaining was the robber. (The remaining photograph was of the defendant.) When the victim was asked to compare the black and white photo to the colored photo lying in close proximity to the shirt, glasses and knife, she then identified the defendant's photograph as the correct one. All but two of the photographs presented to the victim were dated "1974." The color picture of the defendant was dated "1978."
The defendant's first claim is that the trial court erred in allowing into evidence the out-of-court photographic identification of the defendant by the robbery victim. The United States Supreme Court has stated that "reliability is the linchpin in determining the admissibility of identification testimony." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). "The standard, after all, is that of fairness"; Manson v. Brathwaite, supra, 113, 97 S.Ct. at 2252; to be determined by examination of the "totality of the circumstances." Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The factors to be considered in determining the reliability of an identification Manson v. Brathwaite, supra, 432 U.S. 114, 97 S.Ct. at 2253, citing Neil v. Biggers, supra, 409 U.S. 199-200, 93 S.Ct. at 382.
We turn, then, to the facts of this case and apply the requisite standard. Opportunity to view: The victim had observed the defendant in a well-lit shop at approximately 9:30 a. m. The robber was not masked although he did wear sunglasses and a small beard. The robber was the only person in the shop besides the witness at the time of the robbery. The victim had observed the robber as a potential customer from a distance of less than ten feet for several minutes prior to the confrontation. Degree of attention: The robber was the only person in the store for a period exceeding ten minutes. The victim first observed the individual as a potential customer and later as her assailant. Accuracy of the description: The victim gave a description to the police within minutes of the robbery. No claim has been made that the defendant failed to fit the description provided to the police. Witness' level of certainty: Although it is true that the victim could not positively identify the original black and white photograph of the defendant with total certainty, the witness did eliminate the other photographs and did positively identify the color photograph. Apparently, the black and white photo of the defendant was not as recent as the color photo and did not as closely resemble the defendant as he appeared at the time of the robbery. The victim was uncertain whether the two photographs were of the same person, but was certain that the color photograph was the assailant. Time between the crime and the confrontation: The victim gave her description to the police within minutes of the robbery. The photographic identification occurred approximately two weeks later.
These indicators of the reliability of the identification are not outweighed by the claimed suggestiveness of the identification procedure. The police presented the victim with an array of photographs. She easily eliminated five of the six pictures presented. In the process of deciding upon the sixth, the victim noticed a color photograph resting upon an adjacent desk. Upon looking at that photograph, she made a positive identification of the defendant as the assailant in the robbery. As we have noted on prior occasions, "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, cert. denied, 423 U.S. 851, 96 S.Ct. 95, 46 L.Ed.2d 74 (1975).
In viewing the totality of the circumstances of this identification procedure we cannot say that the procedure was so impermissibly suggestive as to be likely to result in misidentification. In reaching this result, we especially note the victim's lengthy and clear view of her assailant.
The defendant's second claim is that the trial court erred in failing to suppress the evidence obtained as a result of a search of the defendant's car. In our decision in State v. Johnson, --- Conn. ---, 438 A.2d 851 (1981), involving the very same search, we held that the search was permissibly warranted under the automobile exception to the warrant requirement delineated by the United States Supreme Court in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Our holding in State v. Johnson, supra, is determinative of the defendant's claim in this case.
The defendant further claims that the trial court erred in its charge to the jury. The...
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