State v. Kasper

• Decision Date: 05 April 1979
• Docket Number: No. 324-76,324-76
• Citation: 404 A.2d 85,137 Vt. 184
• Parties: STATE of Vermont v. John Eugene KASPER, Jr.
• Court: Vermont Supreme Court

Page 85

404 A.2d 85

137 Vt. 184

STATE of Vermont v. John Eugene KASPER, Jr.

No. 324-76.

Supreme Court of Vermont.

April 5, 1979.

M. Jerome Diamond, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for plaintiff.

James L. Morse, Defender Gen., Charles S. Martin, App. Defender, Montpelier, and Kenneth Ampel and Richard Peyster, Law Clerks (on brief), for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

HILL, Justice.

In the early evening of December 27, 1975, two masked men entered a small market in Winooski, Vermont. A gun was fired, and one of the men announced their intention to rob the store. After emptying the cash register, they forcibly took money from two patrons, pistol whipping one of them in the process. There were five persons in the market during the robbery.

This appeal is brought by John Eugene Kasper, Jr., who, after trial by jury, has been convicted as charged in a two part indictment. Part A charged two violations of 13 V.S.A. § 608(b) (assault and robbery with a dangerous weapon) and one violation of 13 V.S.A. § 608(c) (assault and robbery with a dangerous weapon, bodily injury resulting). Part B charged him with being an "habitual criminal" in violation of 13 V.S.A. § 11. The trial court, relying on the habitual criminal statute, sentenced the defendant to three life terms, one for each conviction. We affirm.

A lengthy recitation of the facts would serve no useful purpose here. They are discussed only insofar as they relate to each of the many claims raised by the appellant. ¹

I.

One and a half months after the robbery and once the police investigation had focused on the appellant, one of the eyewitnesses to the crime was visited by the police and shown a photographic array of robbery suspects. Twelve photographs were displayed to her, but only eleven individuals were pictured; the appellant's picture appeared twice. Only three of the other persons in the array matched his general description. She selected one of the photographs of the appellant as being of one of the robbers, but she was unable to identify the other photograph of him. The participation of the defendant was established by other evidence.

Of five eyewitnesses to the robbery, only this person was able to identify the appellant as one of the robbers, and only she so identified him at trial. During most of the robbery, which occurred in a brief period of time, she was in close proximity to the man she later identified as Kasper. He was garbed in a nylon stocking mask and wool stocking cap.

Six days after her initial identification of Kasper, a smaller array of photographs was shown to her. The defendant's photograph appeared once. Only one of the other seven individuals pictured matched his general description, and she identified the photograph of the defendant as being of the robber.

Between the time of the robbery and this final identification by photograph, a period of seven weeks, the witness' description of the robber varied.

When the prosecutor moved to introduce the photographs of the defendant that had been selected by the witness in February, defense counsel moved to introduce both arrays in their entirely. The court admitted the arrays as the defendant's exhibits, and the selected photographs were marked as exhibits for the State.

The appellant now contends that the trial court erred in not suppressing the testimony of the eyewitness because the pretrial identification procedures were so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. We disagree.

"The duty to exclude objectionable data lies squarely upon the shoulders of defense counsel." United States v. Castenada, 555 F.2d 605, 610 (7th Cir. 1977). No pretrial motion to suppress the eyewitness' testimony was made, see V.R.Cr.P. 12(b)(3), nor was it objected to at trial. "It is the established rule of this Court that it will not, even in criminal cases, consider questions not raised in the court below." State v. Demag, 118 Vt. 273, 277, 108 A.2d 390, 393 (1954). We consider this principle "fundamental to the process of judicial review." State v. Murray, 123 Vt. 232, 233, 186 A.2d 193 (1962). Its purpose is to require that correctable error be addressed initially in the trial court. Its justification lies in promoting fair trials, "maximizing correct decisions and concomitantly minimizing errors requiring mistrials and retrials." Henry v. Mississippi, 379 U.S. 443, 463, 85 S.Ct. 564, 575, 13 L.Ed.2d 408 (1965) (Harlan, J., dissenting). Compare Id. at 448, 85 S.Ct. 564. "If the rule were otherwise, counsel might at times be tempted to remain silent about some fault on the part of the trial court . . . and so, without giving it a chance to correct the situation, arm themselves with ground for reversal if the verdict should go against them." State v. Hood, 123 Vt. 273, 277-78, 187 A.2d 499, 502 (1963). See State v. Welch, 136 Vt. 442, 444, 394 A.2d 1115, 1116 (1978).

This principle is generally, see State v. Hood, supra, 123 Vt. at 277, 187 A.2d at 502, but not universally accepted, especially when the right at stake is deemed "fundamental" or of constitutional dimension. See United States v. Provencio, 554 F.2d 361, 363 (9th Cir. 1977). Such misgivings understandably are prompted by the notion that adherence to the rule when faced with an obvious and fundamental error below undermines the credibility of the judicial process.

We recognize this danger and our cases avoid it. Where an error is "a glaring error . . . so grave and serious that it strikes at the very heart of (a defendant's) constitutional rights," failure to raise it in the trial court will not bar its assertion here. State v. Morrill, 127 Vt. 506, 511, 253 A.2d 142, 145 (1969). In such a case, failure to make the claim below has not deprived the trial court of "a fair opportunity to consider, evaluate and rule upon such question." State v. Bressette, 130 Vt. 321, 322, 292 A.2d 817, 818 (1972). Such a defect should be noticed by the trial judge sua sponte, and the doctrine of State v. Morrill, supra, requires it if reversal is to be avoided.

Addressing the present claim of error in this context, we are not persuaded that these convictions should be reversed. The United States Supreme Court has noted that "the annals of criminal law are rife with instances of mistaken identification" and a major contributing factor "has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification." United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967). The Court has

recognized that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, Or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.

Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968) (emphasis added).

The suggestiveness of including two photographs of the defendant in the February 10 array is patent, and it was unnecessary because no emergency or other exigent circumstance justified it. Cf. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (imminent death of bedridden eyewitness justified hospital room showup). But the Supreme Court also has indicated that an unnecessary and suggestive pretrial identification procedure does not necessarily violate a defendant's right to due process. In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Court stated that unless the identification procedure reveals " 'a very substantial likelihood of irreparable misidentification,' " it is "content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature." Id. at 116, 97 S.Ct. at 2254 (quoting Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. 967).

In Manson, the Court concluded that as far as due process is concerned, "reliability is the linchpin in determining the admissibility of identification testimony." Id. 432 U.S. at 114, 97 S.Ct. at 2253. To determine whether such testimony is admissible certain indicia of reliability must be weighed against the corrupting effect of the suggestive identification itself. Id. "These 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 prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Id.

Applying this analysis, our conclusion is that the eyewitness' identification although preceded by a suggestive and unnecessary pretrial identification was sufficiently reliable for the trial court to submit it to the jury. The witness had an adequate opportunity to view the robber. According to her testimony, she was able to view him face to face, and the stocking cap and nylon stocking mask he was wearing did not so distort his features or obstruct her vision so as to prevent her from obtaining an accurate description. She was in close proximity to him during the entire course of...