State v. Lindstrom

• Decision Date: 23 September 1997
• Docket Number: No. 16023,16023
• Citation: State v. Lindstrom, 702 A.2d 410, 46 Conn.App. 810 (Conn. App. 1997)
• Parties: STATE of Connecticut v. John O. LINDSTROM.
• Court: Connecticut Court of Appeals

Page 410

702 A.2d 410

46 Conn.App. 810

STATE of Connecticut v.John O. LINDSTROM.

No. 16023.

Appellate Court of Connecticut.

Argued Jan. 16, 1997.

Decided Sept. 23, 1997.

Lauren Weisfeld, Assistant Public Defender, for appellant(defendant).

Ronald G. Weller, Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Herbert E. Carlson, Jr., Supervisory Assistant State's Attorney, for appellee(State).

Before EDWARD Y. O'CONNELL, C.J., and SPEAR and FRANCIS X. HENNESSY, JJ.

FRANCIS X. HENNESSY, Judge.

The defendant, John O. Lindstrom, appeals ¹ from a judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a)(2)(B).

The defendant claims that the trial court improperly (1) deprived the defendant of due process by denying his motion to suppress the victim's pretrial identification of him, and subsequently allowing her to identify him in court, (2) admitted constancy of accusation evidence, (3) denied him access to drug and psychiatric records of the victim and (4) instructed the jury on reasonable doubt.

The jury reasonably could have found the following facts.On the evening of August 11, 1993, the victim ² drove to Hartford from her home in Wethersfield to purchase heroin.After purchasing and consuming heroin, she intended to drive home but found that she could not start her car.She began hitchhiking and a man later identified as the defendant offered her a ride, which she accepted.Instead of driving to Wethersfield the defendant drove through Hartford while holding a knife to the victim's throat.The defendant eventually stopped at a vacant lot and threatened to kill the victim if she did not do as she was told.After he unsuccessfully attempted vaginal intercourse with the victim, the defendant compelled her to perform oral sex.Two hours later, the victim pretended that she wanted to be with the defendant and asked if he could take her to his home so she could shower.The defendant agreed.The victim jumped out of the defendant's car at a stop light, ran into a convenience store, asked for a pen and, as the defendant drove away, wrote down the license plate number of the car he was driving.She then called the police.

I

The defendant first claims that the trial court improperly denied his motion to suppress the out-of-court identification of him by the victim because the procedure used to obtain that identification was unnecessarily suggestive and unreliable.He further claimed that any in-court identification based on it would lack an independent basis.

The following additional facts are relevant to this claim.Approximately two months after the assault, the victim was shown a photographic array in an attempt by the police to identify her assailant.Of the eight people depicted, the victim knew seven, one of whom was her husband.The defendant's photograph was in the middle of the array and, upon seeing it and before looking at the remaining photographs, the victim immediately identified him as her attacker.The trial court found the identification procedure to be unnecessarily suggestive but reliable under the totality of circumstances.The trial court denied the motion to suppress and allowed the in-court identification.³

The defendant claims that the denial of the motion to suppress violated his right to due process and a fair trial."A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure....To succeed on the motion to suppress, the defendant must prove (1) that the identification procedures were unnecessarily suggestive, and (2) that the resulting identification was not reliable in the totality of the circumstances."(Citations omitted; emphasis added; internal quotation marks omitted.)State v. Askew, 44 Conn.App. 280, 283-84, 688 A.2d 1346(1997).A reviewing court need reach only the second prong of this test if the trial court has made a finding that the original identification procedure was unnecessarily suggestive.SeeState v. Payne, 219 Conn. 93, 107, 591 A.2d 1246(1991).In analyzing the totality of the circumstances, the reviewing court, after determining that the original identification procedure was unnecessarily suggestive, must determine if it was so much so as to render it conducive to irreparable misidentification.If and only if the original identification procedure was so suggestive as to be conducive to irreparable misidentification should the subsequent in-court identification be excluded.SeeState v. Smith, 200 Conn. 465, 470, 512 A.2d 189(1986);State v. Askew, supra, at 283-84, 688 A.2d 1346.

The factors used to determine whether an unnecessarily suggestive photographic array is nevertheless reliable are set forth in State v. Felder, 39 Conn.App. 840, 668 A.2d 382, cert. denied, 236 Conn. 906, 670 A.2d 1306(1996)."If a court determines that an identification procedure was unnecessarily suggestive, the court may determine that the identifications are nevertheless reliable and thus admissible.State v. Ramsundar, 204 Conn. 4, 10, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S.Ct. 348, 98 L.Ed.2d 374(1987).In Manson v. Brathwaite, [432 U.S. 98, 114-15, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140(1977) ] the United States Supreme Court set forth the following factors for determining whether an identification is reliable although the identification procedure was unnecessarily suggestive: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty the witness demonstrated at the confrontation; and (5) the time between the crime and the confrontation.We weigh the corrupting effect of the suggestive identification against these factors.Our Supreme Court has adopted the factors set forth in Manson as those to be considered in determining the reliability of an identification subsequent to a suggestive identification procedure.State v. Ramsundar, supra, [at] 10-11 .Where the factual basis of the court's decision is challenged, we must determine whether the facts that have been found are supported by the evidence or whether, in light of the evidence and the pleading in the whole record, those facts are clearly erroneous.State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288(1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1014, 79 L.Ed.2d 244(1984)."State v. Felder, supra, at 846-47, 668 A.2d 382.

On the basis of the evidence, the trial court found that the victim had ample opportunity to view her assailant in that he did not cover his face or disguise it in any way, the car light went on when she entered the car, there were streetlights on as they drove throughout the city, her vision was not impaired and she was close to her assailant's face and observed him over a period of hours.The trial court further found that the degree of the victim's attentiveness was evident from the circumstances of her entering a strange car and therefore focusing on the driver's face and appearance, and her being a victim whose sensory perceptions would be acute because of her situation.Additionally, the court found that the victim's description of her attacker was detailed and consistent throughout the investigation, that the victim demonstrated a high level of certainty at the confrontation and that the time between the crime and the confrontation was not so inordinately long as to make the identification unreliable.

After reviewing the facts of this case, we conclude that the trial court was correct in denying the motion to suppress.Despite the fact that the trial court found the photographic array to be unnecessarily suggestive, the trial court was correct in not excluding the in-court identification because, under the totality of the circumstances, there was not a risk of irreparable misidentification.

II

The defendant's second claim is that the trial court's admission of constancy of accusation evidence by three police officers violated his right to due process.We decline to review this claim because the defendant failed to preserve it.

The following additional facts are relevant to our resolution of this claim.Three police officers testified for the state at trial.Detective Luisa St. Pierre testified about the details of the sexual assault provided to her by the victim on October 13, 1993, the day the victim was shown the photographic array.Officer Rocco Fierranti and Officer Kelly Gerent testified about their conversations with the victim, which occurred immediately after the sexual assault.The defendant cross-examined the officers.The defendant did not object to the three officers' testimony at trial.The defendant does not directly concede that he failed to preserve his claim, and requests this court on appeal to review his claim according to State v. Troupe, 237 Conn. 284, 293-306, 677 A.2d 917(1996).In doing so, he urges this court to abandon the constancy of accusation doctrine.⁴In the alternative, he requests us to review his claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823(1989), and the plain error doctrine.

The defendant argues that his claim is entitled to Golding review ⁵ because the testimony of the three constancy of accusation witnesses violated his constitutional rights to confrontation and equal protection.The defendant's claim, however, fails the second prong of Golding because it is not of constitutional magnitude.Our Supreme Court has held that the constancy of accusation doctrine does not violate the right to confrontation."Because constancy of accusation evidence is not admissible unless the victim has testified, and is subject to cross-examination, concerning the crime and...