State v. Manson
| Decision Date | 22 December 2009 |
| Docket Number | No. 27561.,27561. |
| Citation | 984 A.2d 1099,118 Conn.App. 538 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Sherman MANSON. |
William B. Westcott, special public defender, for the appellant (defendant).
James M. Ralls, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Herbert E. Carlson, Jr., former supervisory assistant state's attorney, for the appellee (state).
BEACH, ROBINSON and PETERS, Js.
"A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure." State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984). The principal issue in this criminal appeal is whether the trial court properly denied the defendant's motion to suppress evidence of the victim's pretrial identification, allegedly resulting from an unconstitutional photographic array procedure. We agree with the trial court's denial of the defendant's motion, and we affirm the judgment against the defendant.
On November 16, 2005, the state filed a four count substituted information, charging the defendant, Sherman Manson, with two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1),1 one count of burglary in the first degree in violation of General Statutes (Rev. to 2003) § 53a-101(a)(2)2 and one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a).3 A jury found the defendant guilty of all charges, and the court sentenced him to a total effective term of forty-five years of imprisonment. The defendant's appeal principally challenges the admissibility at trial of evidence of his identification by the victim.
The jury reasonably could have found the following facts regarding the incident of sexual assault and burglary that underlie the defendant's conviction. On October 2, 2004, the victim, who was then eighty-nine years old, was returning from grocery shopping to her second floor apartment. A friend was helping her with the grocery bags. Following her friend's departure, because she noticed someone walking behind her, she stopped putting her groceries inside the apartment and stepped to the porch railing. She called to Robert Wilson, who lived in the neighborhood and was then in the parking lot, and asked who was behind her. Wilson spoke to the individual, asking: "Sherman, is that you up there?" The defendant stepped into view of Wilson and said, "yeah, it's me, Uncle Rob, it's me." Wilson then left. Despite the victim's continued concern about the proximity of the defendant, she resumed putting her groceries away.
Over the victim's protest, the defendant began throwing her groceries into her apartment, allegedly to help her, and then followed her inside. He first pushed her down on the floor and then moved her onto her divan, where he commenced sexually assaulting her. Her glasses fell off when she was thrown onto the divan, and she closed her eyes to avoid looking at the defendant during the assault. After assaulting the victim, the defendant went to the back door of the apartment while the victim attempted to escape out the front door. He noticed her before she could escape, threw her down again on the divan and assaulted her again. He then left, telling the victim that he would return the next day.
After the defendant left, the victim discovered that money was missing from her wallet, though she did not see the defendant take it. According to the victim, during the assault, the defendant told her his name, address and age.
After the defendant left the victim's apartment, she asked a neighbor, Edna Elkey, to come over. When Elkey arrived, the victim told her of the assault by the defendant. Elkey told her daughter, Charlene Ledbetter, of the assault, and Ledbetter called the police. The victim was taken to a hospital where an examination revealed injuries consistent with sexual assault.
On October 5, 2004, the victim was interviewed at her home by police officers and shown a photographic array that included the defendant's picture. Although the victim initially identified the defendant's photograph, she added that another photograph resembled her assailant as well and that her lack of certainty related to the fact that the photographs were too small. The police returned to the victim's home with the same photographic array with enlarged photographs, one on each page. The victim again identified the defendant's photograph, saying, "that's the one I know is Sherman."
On appeal, the defendant claims that the court improperly (1) admitted evidence of the pretrial photographic array identification made by the victim, (2) permitted the victim to make an in-court identification, (3) excluded expert testimony about the unreliability of eyewitness identifications and memory of subjects exposed to highly stressful situations and (4) charged the jury concerning the burglary in the first degree count. We are not persuaded.
The defendant's principal claim is that the court improperly denied his motion to suppress the pretrial photographic array identification made by the victim. The court concluded that the photographic array was not unnecessarily suggestive, and that, even if it had been suggestive, it was inherently reliable and therefore admissible.
"[A] claim of an unnecessarily suggestive pretrial identification procedure is a mixed question of law and fact." State v. Marquez, 291 Conn. 122, 137, 967 A.2d 56 (2009). "[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused ... we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court's ultimate inference of reliability was reasonable.... [T]he required inquiry ... 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 an examination of the totality of the circumstances.... To prevail on his claim, [a] defendant has the burden of showing that the trial court's determinations of suggestiveness and reliability both were incorrect....
"Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error." (Citation omitted; internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 547-48, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006).
The defendant maintains that the court's admission of the victim's photographic identification in this case was improper because it failed both prongs of the test for constitutionality. He argues that the victim (1) did not make a definitive identification of the defendant's photograph until she was shown a second photographic array with the defendant's photograph repeated and (2) could not reliably identify the defendant. We are not persuaded.
The defendant principally argues that the photographic array fails the first prong of the test for constitutionality because, in the initial array, the victim was unable definitively to identify the defendant and instead selected the photographs of two different individuals as possibly being her assailant. The defendant complains that the enlarged version of the photographic array improperly repeated the defendant's photograph, thereby making the procedure unnecessarily suggestive.
In support of its conclusion that the identification procedure was not unnecessarily suggestive, the court found the following relevant facts. These findings of fact, which are amply supported by the record, have not been challenged on appeal.
"[A]ny analysis of unnecessary suggestiveness must be conducted in light of the totality of the circumstances and must focus specifically on the presentation of the photographic array itself as well as the behavior of law enforcement personnel to determine if the procedure was designed or administered in such a way as to suggest to the witness that a particular photograph represents the individual under suspicion.
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