State v. Ledbetter

• Decision Date: 29 December 1981
• Parties: STATE of Connecticut v. William LEDBETTER.
• Court: Connecticut Supreme Court

Page 595

441 A.2d 595

185 Conn. 607

STATE of Connecticut v. William LEDBETTER.

Supreme Court of Connecticut.

Argued Nov. 3, 1981.

Decided Dec. 29, 1981.

Suzanne Zitser, Asst. Public Defender, New Haven, with whom, on the brief, were Jerrold H. Barnett, Public Defender, and Joette K. Rubin, Asst. Public Defender, New Haven, for appellant (defendant).

John M. Massameno, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Richard L. Shiffrin, Asst. State's Atty., for appellee (state).

Before SPEZIALE, C. J., and PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.

PARSKEY, Associate Justice.

Upon a trial to the jury, the defendant was convicted of robbery in the first degree in violation of General Statutes § 53a-134(a)(4). In his appeal, the defendant claims error in the trial court's denial of his motions to suppress photographic, out-of-court, and in-court identifications.

The following facts are not disputed: At approximately 2 p. m. on March 14, 1978, Steven Palmer, a gasoline station manager, while making a deposit at the Connecticut Bank and Trust Company branch office located on Main Street in East Hartford, became the victim of a robbery. He had approached the rear of the bank, carrying money in a blue vinyl bank bag, when suddenly he heard a voice from behind demanding that he turn over the deposit bag. Palmer turned around and saw a black man pointing a sawed-off, double-barreled shotgun at him. Palmer paused for a few seconds and the man repeated his demand for the bag, at which time Palmer tossed the bag to him. Upon catching the bag, the man turned away and walked to a red Dodge van that was backed into a parking place on the bank lot and entered the van through its passenger side. Palmer ran to his car and in his car proceeded to follow the van from East Hartford into Hartford, eventually to a parking lot on Charter Oak Place. Palmer made no attempt to enter the lot in pursuit of the van because he feared a confrontation with this armed individual. Instead, Palmer requested a pedestrian on the scene to call the police.

Later that day Palmer told the East Hartford police that he had been robbed by a black male, in his early twenties, approximately five feet nine inches tall, weighing one hundred and fifty pounds, with medium dark skin and a small Afro-style haircut, who was wearing brown pants and a rust color jacket. From Palmer's description the police prepared a composite sketch of the gunman. Palmer was also shown a number of photographs but recognized none as bearing any resemblance to the individual who stole his deposit bag. The defendant's photograph was not included in this display. On March 20, six days later, Palmer identified the defendant's photograph from a display of eight black and white photographs. The next day Palmer again identified the defendant's photograph from a display of eight color photographs. In both displays, only the defendant's picture was repeated. On March 28, a week later, Palmer identified the defendant from among eight individuals, three of whom were black, being arraigned individually in geographical area No. 14 of the Court of Common Pleas on other charges. Shortly thereafter, Palmer again identified the defendant in a one-on-one confrontation at the courthouse. At the trial, the court denied the defendant's motions to suppress the several identifications, including Palmer's positive in-court identification.

The robbery occurred in daylight. The elapsed time that Palmer had the robber in view ranged from ten to forty seconds, ten to twenty seconds of which was face to face at a distance of twenty feet.

I

Identification of persons suspected of criminal conduct may impinge on constitutional rights, usually the right to counsel embodied in the sixth amendment to the United States constitution and the fourteenth amendment right to due process. The right to counsel attaches "at or after the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The defendant claimed that his right to counsel attached in this case when he was arraigned on other charges at the Court of Common Pleas. This claim is without merit. The right to counsel attaches only where the adversarial judicial criminal proceedings have been initiated with respect to the particular crime as to which the suspect is being identified. Boyd v. Henderson, 555 F.2d 56, 61 (2d Cir.), cert. denied, 434 U.S. 927, 98 S.Ct. 410, 54 L.Ed.2d 286 (1977). Whatever vitality remained in State v. Oliver, 161 Conn. 348, 354, 288 A.2d 81 (1971) in this respect after State v. Middleton, 170 Conn. 601, 609-10, 368 A.2d 66 (1976), was completely sapped by State v. Packard, --- Conn. ---, ---, 439 A.2d 983 (42 Conn.L.J., No. 48, pp. 5, 8) (1981), in which we said: "In State v. Oliver, 161 Conn. 348, 354, 288 A.2d 81 (1971), this court held 'that a pretrial lineup or confrontation, for the purposes of identification, when the police investigation has reached the accusatory stage, is such a critical step in a criminal prosecution that under the sixth amendment to the United States constitution a suspect is at that time entitled to the assistance of counsel. While the Wade case (388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ) factually involved a defendant under arrest and the defendant James H. Oliver was not under arrest at the time the police (conducted the identification procedure), the fact of prior arrest is not decisive. The significant constitutional factor is whether at the time of the pretrial identification the relationship between the police and the defendant was "accusatory" or "investigatory." ' Subsequent to this decision Kirby v. Illinois (406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) ), State v. Townsend (167 Conn. 539, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975) ), and State v. Middleton (170 Conn. 601, 368 A.2d 66 (1976) ), were decided. The rules set out in the latter three cases overrule and replace that portion of State v. Oliver quoted above." As for the language employed in State v. Lee, 177 Conn. 335, 341, 417 A.2d 354 (1979), in the context of an assumed legal situation, it is sufficient to observe that legal propositions which are based on the shifting sands of supposititious cases are frequently washed away with the changing juridical tides. In sum, except for Palmer's in-court identification, which the defendant challenges only on the basis of the claimed legal infirmity of one or more of the out-of-court identifications, the applicable basis for consideration of the several identifications is due process.

II

"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 must be determined whether the identification procedure was 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, --- Conn. ---, ---, 438 A.2d 432 (42 Conn.L.J., No. 22, pp. 8, 10) (1980).

In applying this standard to the identifications in the present case, we examine the first challenged photographic display. Officer Leonard Boyle of the East Hartford police department testified that he obtained from the Hartford police department a black and white photo of the defendant taken in 1976, combined it with seven other photos of black males of approximately the same age and physical characteristics and, on March 20, handed the eight photos to Palmer for his examination. Palmer selected the defendant's picture and told Boyle "that looked a lot like the guy, but (he) could not be sure from the picture." During the entire process Boyle made no suggestions to Palmer about the defendant or about the display. After Palmer selected the defendant's photo, Boyle told him that the picture he selected was of Willie Ledbetter.

With respect to the first challenged display the defendant does not claim, nor is there any basis for a claim, that the display itself was suggestive or that Boyle was suggestive in any respect in the selection process. Rather, the defendant's claim is that the motion to suppress the selected photo from this display should have been granted because Palmer was not positive in making his selection. Challenges of this nature do not rise to the level of constitutional dimension. Such challenges go to the weight rather than to the admissibility of the evidence. People v. Gonzales, 68 Cal.2d 467, 472, 67 Cal.Rptr. 551, 439 P.2d 655 (1968), cert. denied, 393 U.S. 1055, 89 S.Ct. 693, 21 L.Ed.2d 696 (1969); Adams v. United States, 302 A.2d 232, 235 (D.C.App.1973); State v. Bauman, 77 Wash.2d 938, 941, 468 P.2d 684 (1970). The test to be applied for the admission of out-of-court identification evidence is reasonable probability. State v. Johnson, 162 Conn. 215, 232, 292 A.2d 903 (1972). Absent constitutional barriers, so long as the witness has identified the defendant with reasonable probability, whether the identification is the result of a photo display, a line-up, a show-up or otherwise, the evidence is admissible. The question, in the final analysis, is one of relevancy. The usual test for relevancy is whether the evidence offered renders a material fact, in this case the reliability of the witness' in-court identification, more probable than it would be without the evidence. State v. Ward, 172 Conn. 163, 167-68, 374 A.2d 168 (1976); see McCormick, Evidence (2d Ed.) § 185.

The color photographic display, the arraignment observation at the geographical area No. 14 courthouse, and the one-on-one confrontation at the same courthouse have one thing in common. They all involve...