State v. Lee

• Decision Date: 17 April 1979
• Citation: 417 A.2d 354,177 Conn. 335
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. George W. LEE.

Page 354

417 A.2d 354

177 Conn. 335

STATE of Connecticut v. George W. LEE.

Supreme Court of Connecticut.

Argued Jan. 9, 1979.

Decided April 17, 1979.

Jerrold H. Barnett, Public Defender, with whom, on the brief, were Richard Emanuel and Vincent J. Giedraitis, Asst. Public Defenders, for appellant (defendant).

Robert M. Meyers, Asst. State's Atty., with whom, on the brief, was George D. Stoughton, State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and PARSKEY, JJ.

PARSKEY, Associate Justice.

After a trial to a jury the defendant was convicted of burglary in the third degree in violation of General Statutes § 53a-103a, robbery in the first degree in violation of § 53a-134(a)(2), and kidnapping in the second degree in violation of §§ 53a-94 and 53a-91(2)(b). The issues involved in this appeal are (1) whether the in-court identification of the defendant was constitutionally admissible, and (2) whether there was sufficient evidence to convict the defendant of the kidnapping charge.

On December 10, 1974, Frank Salamon was residing with his parents in a two-story, one-family home located in a rural area of Canton. About 11 a. m., as Salamon was awakening in his second floor bedroom, he heard a noise downstairs and the family dog barking. As he started downstairs he encountered a black male, whom he later identified as the defendant, coming up the stairs, who pulled out a pocketknife with a three- or four-inch blade, pointed it at Salamon, and ordered him to return to his bedroom. Salamon was directed to sit on the bed while the black male took things from drawers and cabinets and put them in a pillow case and, while he was in Salamon's bedroom, a white male wearing a scarf that covered the lower part of his face entered. Thereafter, the black male left the room and, about five minutes later, he returned and remained in the room for about another five minutes. While both intruders were together in the bedroom, the white male tied Salamon on the bed with a lamp cord, and a sheet was tied around his head, so that he could not see. Thereafter the pair left, Salamon freed himself and immediately notified the police.

I

The defendant assigns error in the court's failure to exclude Salamon's in-court identification of the defendant as the black male who accosted him on the stairway. His claim is that this identification was tainted by a previous out-of-court identification made under circumstances that violated his rights under the sixth and fourteenth amendments of the constitution of the United States. Certain additional facts are pertinent to this inquiry. After Salamon reported the incident, he gave a description of both the white and black males to Sergeants Stephen Cudworth and John LaDucer of the Canton police department. He described the white male as being five feet, ten inches in height, of medium build, having black hair of short length and wearing a scarf over his face. He described the black male as approximately six feet in height, of medium build, having black hair in a short Afro style and no facial hair. About an hour after the crime, Salamon was taken to Hartford police headquarters where he examined five mug shots of white males. Before he looked at the photographs he told Sergeant Cudworth that the white man who robbed him had a broad forehead with a high hairline. After he examined the photographs, Salamon picked out one of them, Paul DeWitt, as the white male who participated in the crimes. Salamon was also shown about two hundred photographs of black males but he could not identify any of them. Sergeant Cudworth did not ask the Hartford police department to segregate or identify the photographs of black males shown to Salamon, nor did he know whether the defendant George Lee's photograph was among them. On January 28, 1975, the Canton police were notified by the state police that they had apprehended Paul DeWitt and a black male and that both were to be presented to the Court of Common Pleas in Middletown on January 29, 1975, for charges unrelated to the Canton incident.

Sergeant LaDucer telephoned Salamon, told him about DeWitt's arrest with a black male, and requested him to come to Middletown the next day to see if he could identify the black male in a line-up. Later the Canton police learned that a line-up could not be arranged. Upon learning that a line-up would not take place, Sergeant LaDucer decided he would locate the courtroom where DeWitt and Lee were and would ask Salamon if he could identify them. On January 29, 1975, Sergeant LaDucer and a detective from the Simsbury police department drove Salamon to the Court of Common Pleas in Middletown. While the police and Salamon were walking to the court liaison officer's room, they fortuitously encountered DeWitt and the defendant in the second-floor hallway. At the time, DeWitt and the defendant were handcuffed and were standing beside a state police officer. All of the people in the hallway at the time, other than the defendant, were white. After observing DeWitt and the defendant for about five to ten minutes, Salamon told Sergeant LaDucer that they were the pair who had been in his house. When he identified the defendant to Sergeant LaDucer, Salamon volunteered the information that the defendant had grown a beard since the date of the robbery.

The state represented to the court, at the hearing on the motion to suppress the hallway identification, that during the trial it would not proffer it against either Lee or DeWitt. Because of this representation the trial court did not rule on the admissibility of this identification. It did conclude, however, that the state had established by clear and convincing evidence that Salamon's in-court identification of the defendant was based solely upon his observations and recollection of the defendant at the scene of the crime. The court also concluded that under the totality of the circumstances the in-court identification was not based upon the "corridor confrontation" or its fruits.

An in-court identification of an accused in the course of a trial is subject to challenge in any case where a pretrial corporeal identification has occurred without the presence of counsel at a critical stage of a criminal prosecution. This is so whether the pretrial identification is used to corroborate the in-court identification; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); or not. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The in-court identification is subject to challenge regardless of whether the pretrial corporeal identification without the presence of counsel is in the form of a line-up, a show-up or a one-on-one identification. Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977). The in-court identification may be challenged where the pretrial corporeal identification occurred "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, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972). To overcome the challenge, the burden is on the state to establish by clear and convincing evidence that the in-court identification was based upon the witness' independent recollection. United States v. Wade, supra, 388 U.S. 240, 87 S.Ct. 1926; State v. Middleton, 170 Conn. 601, 609, 368 A.2d 66 (1976); State v. Duffen, 160 Conn. 77, 83, 273 A.2d 863, cert. denied, 402 U.S. 914, 91 S.Ct. 1397, 28 L.Ed.2d 657 (1971). The factors to be considered by the trial court in evaluating the independent source of the witness' in-court identification include "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972).

For the state to meet its substantial burden of persuasion it must come forward with more than a bare preponderance of evidence. Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943). The evidence must be such as to induce in the mind of the trier "a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." Dacey v. Connecticut Bar Ass'n, 170 Conn. 520, 537, 368 A.2d 125, 134 (1976); McCormick, Evidence (2d Ed.) § 340.

The trial court's conclusion that the state had established by clear and convincing evidence that Salamon's in-court identification was based on an independent recollection is amply supported by the unchallenged finding. ¹ Salamon, who was wearing his eyeglasses at the time of the incident, had a good view of the defendant, both full face and profile, and watched him under well-lighted conditions, sometimes at a range of two to three feet, for about ten minutes. Immediately after the robbery, Salamon gave the police a description of the...