State v. Oliver

• Decision Date: 25 June 1971
• Citation: 288 A.2d 81,161 Conn. 348
• Parties: STATE of Connecticut v. James H. OLIVER.
• Court: Connecticut Supreme Court

Page 81

288 A.2d 81

161 Conn. 348

STATE of Connecticut v. James H. OLIVER.

Supreme Court of Connecticut.

June 25, 1971.

L. Scott Melville, Bridgeport, for appellant (defendant).

Joseph T. Gormley, Jr., State's Atty., for appellee (State).

Before HOUSE, THIM, RYAN, SHAPIRO and LOISELLE ^*, JJ.

HOUSE, Chief Justice.

The defendant was found guilty by a jury on two counts of indecent assault. The fact that such assaults took place is not challenged by the defendant but he does deny that he was the assailant. The two assaults took place within a few minutes of each other on July 1, 1968, in Stamford. The first in time but the subject of the second count of the information occurred about 1 p.m. The victim, to whom we shall refer as Mrs. B, was standing in a driveway when an old green car was driven into the driveway and the lone occupant, a Negro, asked her for directions. Mrs. B approached the vehicle and was then indecently assaulted by the driver who left the scene. She immediately reported the incident to the Stamford police, describing her assailant as a Negro with a medium dark complexion, between twentyfive and thirty-five years of age, weighing 180-190 pounds and wearing a shortsleeved, plaid, sport shirt. She also reported the number of the New York registration plate on the car of her assailant.

Shortly after 1 o'clock on the same day the second victim, to whom we shall refer as Mrs. G, who lived on the same street as Mrs. B, was getting mail from her mailbox located about 150 feet from her garage apartment when she was approached by a Negro in a green car bearing New York registration plates. He asked directions and then requested permission to use Mrs. G's telephone. Mrs. G permitted him to enter her kitchen to use the telephone, whereupon she was indecently assaulted by him. The assailant was in her presence for fifteen to twenty minutes and as soon as he left she notified the Stamford police of the assault, describing her assailant as a Negro, five feet eleven inches to six feet tall, weighing 180-200 pounds, with a medium colored complexion and wearing a short-sleeved, plaid, sport shirt.

Before the trial the defendant moved for a separate trial of each of the two counts of the information. This motion was denied. During the trial he moved that the court exclude evidence of any pretrial and in-court identification of the defendant by either of the victims of the assaults. After a hearing by the court, outside the presence of the jury, this motion also was denied. These rulings are the basis of the assignments of error claimed and briefed by the defendant and a decision on the merits of these assignments of error is dispositive of this appeal. The court properly made a finding as a result of its hearing on each of the motions.

We first consider the identification ruling in its application to the testimony of Mrs. B. The New York automobile registration reported by Mrs. B was traced to the defendant, whose physical characteristics matched the description previously supplied by Mrs. B. On July 2, two detectives for the City of New York went to his home in New York and informed him that there was a warrant for his arreat and asked him to accompany them to the 47th precinct police station. The defendant telephoned his brother-in-law, a police officer, who went to the defendant's home and conferred with the two detectives. They informed him that although they had no arrest warrant police from Connecticut were coming to the station with a warrant for the arrest of the defendant and they would like him to stand in a lineup at the station. The defendant agreed to stand in a lineup if his brother-in-law would stand in it with him. Both men then went to the police station about 7:30 p. m., where the defendant was taken to the office of the detective commander, where he waited until approximately 11 p. m. At this time the brother-in-law of the defendant was informed that there would be no lineup, that the Connecticut police did not bring a warrant although they did have a person 'not the witness in this particular action' and that the defendant and his brother-in-law could leave. Both men then exited into the booking area of the station and through this area out of the building.

Meanwhile, Mrs. b, accompanied by two Stamford police officers, traveled by automobile to the 47th precinct police station in the City of New York for the purpose of possibly identifying the man who had assaulted her. One of the accompanying officers told Mrs. B during the trip to the City of New York that the police had located the owner of the car, that he was at the station and they were going there possibly to make an identification. They arrived at the station at about 9:45 p. m. and Mrs. B was taken into the squad room. In her presence there was a general discussion as to how she was to view the suspect they had. The propriety of conducting a lineup was also discussed and it was decided not to conduct any lineup. Instead, Mrs. B was asked to go into the booking area and observe persons coming in and out and see of she could identify any individual that might pass through that room. She observed approximately twenty to twenty-five persons, both blacks and whites, passing through the room. The detective who stood with her had never seen the defendant before and was, therefore, unable to suggest anything to her. After about fifteen or twenty minutes, Mrs. B observed the defendant accompanied by another man walking through the booking area and identified the defendant as her assailant.

The second instance of out-of-court identification was somewhat similar in the case of each of the assault victims. On July 8, at about 11 a. m., the defendant was arrested in Bridgeport, taken from there to the Circuit Court in Stamford and from there to the Stamford police station where he was 'processed.' On the same day, between noon and 12:30 p. m., both assault victims arrived at the detective bureau rooms at the Stamford police station. They were seated at separate desks about twelve to fifteen feet apart and told to look at a series of photographs to see if they could identify one of them as a picture of their assailant and, if they made such an identification, to write their name on the back of the photograph. Eleven of the photographs were so-called 'regular mug shots' with the identification number cut off and the photograph of the defendant was a black and white Polaroid photograph of a similar type. Each woman separately viewed the photographs and, without any suggestion made by anyone, identified the photograph of the defendant as a photograph of her assailant. While the assault victims were in the detective bureau room to examine the photographs, Mrs. B noticed the defendant walking past the room in the adjacent hallway and informed one of the detectives of this identification. The court expressly found that she had no idea that the defendant would walk by the room in which she was seated, that no one told her or suggested to her that he would be there, and that it was by chance and without any plan by the police that she saw him in the hallway outside the detective bureau.

After this preliminary hearing on the defendant's motion, held in the absence of the jury, and after the court had considered the evidence concerning the identification of the defendant by Mrs. B in the New York police station, and what had transpired while both women were examining the photographs in the Stamford police station, the court concluded that 'there was a legal identification' made by both women and that the defendant was not deprived of any of his constitutional rights. Thereafter, Mrs. B was permitted to testify before the jury as to her pretrial identifications of the defendant at the New York police station, from the photographs and on seeing the defendant at the Stamford police station. ¹ She also identified him in the courtroom as her assailant. Mrs. G identified the defendant in the courtroom as her assailant.

The admissibility of the identification evidence in this case is governed by recent decisions of the United States Supreme Court and, more particularly, the decision in the case of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, which by the decision in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.E.2d 1199, is applicable to cases arising since the latter case was decided on June 12, 1967. See also Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402, and Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387. We had recent occasion to discuss the substance and effect of the decision in the Wade case in State v. Duffen, 160 Conn. 77, 273 A.2d 863, cert. denied, 402 U.S. 914, 91 S.Ct. 1397, 28 L.Ed.2d 657, and State v. Oliver, 160 Conn. 85, 273 A.2d 867, cert. denied, 402 U.S. 946, 91 S.Ct. 1637, 29 L.Ed.2d 115; see also State v. Carnegie, 158 Conn. 264, 259 A.2d 628, cert, denied, 396 u.S. 992, 90 S.Ct. 488, 24 L.Ed.2d 455. In the light of these decisions of the United States Supreme Court, the rule is now well settled 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 factually involved a defendant under arrest and the defendant James H. Oliver was not under arrest at the time the police in New York arranged for him to pass through the room where Mrs, B was waiting to identify him, 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.' See Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, which is cited...