State v. Oliver

• Court: Connecticut Supreme Court
• Writing for the Court: Before ALCORN; HOUSE
• Citation: State v. Oliver, 160 Conn. 85, 273 A.2d 867 (Conn. 1970)
• Decision Date: 23 November 1970
• Parties: STATE of Connecticut v. Purcell OLIVER.

Page 867

273 A.2d 867

160 Conn. 85

STATE of Connecticut v. Purcell OLIVER.

Supreme Court of Connecticut.

Nov. 23, 1970.

Edward F. Hennessey, Sp. Public Defender, for appellant (defendant).

Richard A. Schatz, Asst. State's Atty. with whom, on the brief, was John D. LaBelle, State's Atty., for appellee (state).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and BARBER ^*, JJ.

HOUSE, Justice.

The defendant was found guilty by a jury of the crime of robbery with violence in violation of § 53-14 of the General Statutes. He has appealed from the judgment, assigning error to several rulings of the court during the course of the trial and one to the court's charge to the jury.

A preliminary brief recital of general facts is necessary to an understanding of the basis for the claims of error pressed by the defendant.

At about 7 p.m. on October 6, 1967, three men entered the Pepsi-Cola plant in Windsor and conversed with Omer Lessard, an employee, about the purchase of some Pepsi-Cola. Before leaving they also spoke for a few minutes with another employee, Howard Hill. About fifteen to thirty minutes after they had left, the three men returned to the plant. One, Robert Cade, approached Lessard, told him that it was a holdup, placed a gun to Lessard's head and directed him to the cashier's cage. A second man, subsequently identified by witnesses as the defendant Purcell Oliver, approached the cashier's cage occupied by an employee, Malcolm Hightower, and told him it was a holdup. When Hightower appeared unimpressed and skeptical, this man fired a shot from his revolver into the cashier's cage. After receiving money from Hightower, the two men forced him and Lessard to lie face down on the floor of the cashier's cage, and, with a third holdup man, removed a quantity of money and left the plant. The police were then called and Lessard and Hightower described their assailants. The police thereafter placed under surveillance a 1959 Chevrolet automobile which corresponded to a description of the car used by the holdup men to leave the scene of the robbery. About 4 a.m. on October 8, Sergeant John Riccio of the Windsor police entered the unoccupied vehicle under surveillance and removed from it a photograph showing four black men sitting at a table. The automobile was owned by Albert Harris and at the time he removed the photograph from the automobile Sergeant Riccio had no search warrant authorizing a search of the vehicle. The police went to the separate homes of Hightower, Hill and Lessard and each of them upon being shown the photograph identified Cade and Oliver as being two of the men who had participated in the robbery.

On October 16, 1967, Oliver was arrested in Hartford and taken into custody by the Windsor police. At the time of the arrest he was advised by Detective Murray Killen of the Windsor police of his constitutional rights as required by the holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Thereafter, Detective Killen read to Oliver a printed form which set out the constitutional rights enumerated in Miranda. Oliver read it, checked off the specified constitutional rights, signed an acknowledgment of receipt of the warning and a waiver of rights, indicating that he understood his constitutional rights and voluntarily waived them. ¹ Thereafter, Oliver was placed alone in a room in the Windsor police station, which room was equipped with a one-way mirror. He was there at separate times observed through the one-way mirror by Lessard, Hill and Hightower, all of whom separately identified him as a participant in the robbery. Later that evening Detective Killen and Chief Julian Darman of the Windsor police department again advised Oliver of his constitutional rights. Oliver thereafter executed a second written waiver of his rights and gave them an oral statement in which he admitted that he had participated in the Pepsi-Cola holdup. He refused to sign a written confession.

The defendant has assigned as error a ruling of the trial court which permitted Lessard and Hightower to identify Oliver to the jury as a participant in the robbery and as the man who had fired a shot into the cashier's cage and also permitted Hill to testify before the jury that Oliver was one of the three men who had entered the Pepsi-Cola plant at about 7 p.m. on October 6, 1967. It is the claim of the defendant that this in-court identification was inadmissible on the ground that the defendant was not afforded his right to counsel at the pretrial view of the defendant by the witnesses at the police station, that the same pretrial viewing violated his rights to a fair trial and that it was error to admit the in-court identification because each of the three witnesses had previously identified the defendant through the use of an illegally seized photograph.

These claims of error are primarily predicated upon the holdings of the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. We very recently had occasion to discuss the import of these two decisions in State v. Duffen, 160 Conn. 77, 273 A.2d 863. See also State v. Mallette, 159 Conn. 143, 267 A.2d 438, and 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. It is unnecessary to repeat here what we said in the Duffen case. Since the several individual police station identifications of the defendant took place on October 16, 1967, the holding of the Wade case is clearly applicable in the light of the ruling in Stovall v. Denno, supra, which decision was handed down on June 12, 1967, and held that the Wade rule was to be applied prospectively from that date. Not only were the one-man viewings of the defendant at the police station suspect in the light of Stovall v. Denno, supra, but having been made in the absence of counsel and without a waiver following a warning of the right to the presence of counsel at the time of such identification, the procedure was clearly illegal according to the decisions of the United States Supreme Court.

That the police station identification procedure was then constitutionally proscribed does not, however, necessarily render any subsequent in-court identification of the defendant inadmissible. As the Wade decision, supra, 241, held, quoting from Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441, the proper test is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of that primary taint." We noted in State v. Duffen, supra, the various factors which Wade suggested a trial court should consider in the application of this test since mere proof of the absence of counsel at a pretrial lineup is not sufficient reason to exclude a subsequent in-court identification 'without first giving the Government the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.' United States v. Wade, supra, 240, 87 S.Ct. 1939.

The record discloses that the trial court properly held a preliminary hearing in the absence of the jury, and gave consideration to the factors involved in the tests approved by Wade and Stovall v. Denno and to 'the totality of the circumstances.' It found that each of the identifying witnesses had a recollection that Oliver was one of the three robbers independent of any other identifications he had made and concluded that the state had satisfied its burden of proof as to the admissibility of the in-court identification of Oliver by Lessard, Hill and Hightower. The evidence amply supports these findings and the ultimate conclusion.

This conclusion also governed the ruling of the court on the claim of the defendant that the in-court identification was improperly admitted because the identifying witnesses had previously identified the defendant in a photograph. Not only did the court conclude that the in-court identification was independent of any earlier identification made by the witnesses but it does not appear that the photographic identification procedure was improper. The photograph in which the witnesses had identified Oliver was the one taken by the police from the Harris automobile. The identifications were made separately by each of the identifying witnesses, the photograph showed four individuals, the identifications were made within two days of the robbery and after each of the witnesses had furnished to the police descriptions of the robbers, and the identification was essential for the police to determine whether they were on the right track in apprehending the robbers. In Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, the United States Supreme Court discussed the 'hazards of initial identification by photograph'. It noted that 'this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs.' The court held 'that each case must be considered on its own facts, and that convictions based on eyewitness identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' In the light of this decision, the circumstances of the photographic identification in this case and the findings of the trial court, we find no error in this aspect of the court's ruling admitting the in-court identification of the defendant.

A further claim made by the...