State v. McKnight

CourtSupreme Court of Connecticut
Citation191 Conn. 564,469 A.2d 397
Decision Date13 December 1983
PartiesSTATE of Connecticut v. Gary J. McKNIGHT.

Edward J. Caldwell, Asst. State's Atty., with whom, on brief, were Donald A. Browne, State's Atty. and Richard F. Jacobson, Asst. State's Atty., for appellee (state).


ARTHUR H. HEALEY, Associate Justice.

The defendant was convicted after a trial to a jury of five counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(4). On this appeal he claims that the trial court erred: (1) in refusing to suppress the out-of-court and in-court identifications; (2) in refusing the defendant's request for a two-day continuance to locate an absent witness; (3) in refusing to reopen the case after it had been submitted to the jury when that witness became available; (4) in instructing the jury regarding the identification and alibi evidence adduced at trial; and (5) in permitting the state to amend its information during trial. Because of the threshold issue of whether the trial court, Cioffi, J., erred in permitting the identification evidence in this case to be presented to the jury, we will first set out the pertinent evidence presented at the pretrial suppression hearing.


Philomena Klesper, supervisor of accounts for Town Fair Tire Center in Stratford, testified as follows: On February 2, 1979, at approximately 3:15 p.m., she was informed by a co-worker, Beverly Figlar, that two black males had approached her office receptionist, asked her a question, and left upon being told that the store was at the other end of the building. She then told Figlar to lock the outer office door but before Figlar could do so, the two men reappeared in the office. She then heard a voice announce, "this is a hold-up." Klesper looked up and saw a young black male standing before her wearing a blue knit cap and a turtleneck sweater which was partly pulled up to cover his mouth. This man, who was armed with a gun, ordered Klesper and the four other women who worked in the outer office to stand against the wall inside Klesper's office with their hands above their heads. The gunman noticed her efforts to hide her wedding band and he removed it from her. The women were told to lie on the floor. The defendant came into the room she was in which was well lit. Klesper got a "good look at him [for] a few seconds." The man was very neat looking, about six foot three to six foot five inches tall and wore a black leather coat and cap. She described her emotional state as one of anger and not fear during the incident.

Klesper also testified that the following week a Stratford police detective brought in an array of photographs for the women to examine. She stated that with Figlar standing next to her they were asked if they could identify any of the men presented in the array. They were also informed that the police had other photographs but the police said nothing else at this point. Klesper then testified that Figlar and she pointed to one photograph and were "almost certain" that it was the defendant. They were then told that the police would return with a more recent photograph. The police submitted to them a second array in which both of them identified the defendant. Klesper stated that at each of the two viewings it only took them a "few seconds" to pick out the defendant's photograph. She noted that the defendant's eyes "just stood out." She also stated that Figlar and she did not speak during this process.

Beverly Figlar, a bookkeeper at Town Fair Tires also testified. Her testimony with regard to the events during the robbery was consistent with the testimony of Klesper. She also described the two perpetrators. She described one as a black male wearing a turtleneck sweater pulled up to cover his nose and carrying a silver gun. She stated that the other was taller, about six feet in height, wearing a dark leather coat and a dark knit hat. Figlar testified that after she left work on the day of the robbery she viewed approximately three hundred mug shots at the Stratford police department but could not identify any of them. Subsequently, however, she viewed an array while at work with Klesper. She stated that photographs were set before Klesper and her and that she thought that one of the men looked like the defendant. When shown the photograph of the defendant The police returned the next day with a more recent photograph and placed this in an array before Klesper and her. Figlar then testified that one of the photographs looked just like the defendant. She stated that she was certain of her identification on this second array and she also identified the defendant in court. Figlar stated that she had viewed the defendant for approximately two minutes during the robbery. Like Klesper, she noted that "the eyes, and everything were his," and that the office was "very bright."

that had been presented to her in this array, she did not recall having seen that photograph in the array.

Detective Robert Hultgren, a member of the Stratford police department, testified that he investigated the robbery at Town Fair. He stated that he took a description of the robbers from the women at the Town Fair office. He then had the women view an array of at least eight mug shots, some of which had been gathered from other police departments, which he brought to Town Fair on February 7, 1979. Hultgren stated that because the photographs had been taken from various police departments, they were of different size and color intensity. He testified that Klesper and Figlar picked out the defendant's picture from this array but that they were not positive that he was one of the perpetrators. Hultgren returned the following day with a second array comprised of eight to ten more recent photographs from the Bridgeport police department, which produced a positive identification from both Klesper and Figlar. He stated that Klesper and Figlar were separated when they viewed this array and that there was no conversation between them. Hultgren testified that other than the defendant's picture, no record was kept as to the first array of pictures shown to the women at Town Fair and, therefore, that array could not be reproduced. 1

The defendant also testified at the hearing. He stated that on the date of the robbery he was six feet tall and weighed about 152 pounds. The court then ruled that only Figlar's out-of-court identification as to the first array would be suppressed but that her identification as to the second array would not. Neither of Klesper's identifications was suppressed.


At the trial, Klesper testified before the jury about the events of February 2, 1979. She described the robbers and the two out-of-court photographic identifications of the defendant. 2 This testimony was consistent with her pretrial hearing testimony. She then identified the defendant in court.

Figlar also testified at trial as to the events of February 2, 1979, as well as the circumstances surrounding her out-of-court photographic identification of the defendant. Her testimony in this regard was consistent with that elicited at the pretrial hearing. 3 She then identified the defendant in court.

Hultgren's testimony at trial was also consistent with his version of the facts surrounding the out-of-court identification by Klesper and Figlar. In contradiction of the testimony of Klesper and Figlar, he reiterated that the women were separated when they viewed the photographic arrays. Detective John Horan, who investigated the Town Fair robbery with Hultgren, also testified as to the out-of-court identification made by Klesper and Figlar and stated that each of the two women viewed the arrays separately.

On this appeal, the defendant claims that the identification procedures summarized above violated the defendant's due process rights as they were impermissibly suggestive and unreliable, and that the trial judge erred in denying his motion to suppress the out-of-court and in-court identifications by Klesper and Figlar. 4 We do not agree.

Our recent cases make it quite clear that " '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 an examination of the totality of the circumstances.' " State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983) quoting State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). Further, we have stated that a conviction based upon an in-court eyewitness identification following a pretrial photographic identification will be set aside " ' "if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United [States], 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).' State v. Anderson, 178 Conn. 287, 291, 422 A.2d 323 (1979)." State v. Doolittle, supra. Moreover, we have held that on a motion to suppress evidence based upon photographic identifications, the defendant as the moving party must bear the initial burden of proving that the photographic identification was unconstitutional in some manner. State v. Kinsey, 173 Conn. 344, 346, 377 A.2d 1095 (1977); State v. Hafner, 168 Conn. 230, 235, 362 A.2d 925 (1975), cert. denied, 423 U.S. 851, 96 S.Ct. 95, 46 L.Ed.2d 74 (1975).

With regard to the photographic identifications in this case, the defendant argues that the manner in which the first array of photographs was shown to Klesper and...

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