State v. Owens, 13584

• Decision Date: 28 September 1995
• Docket Number: No. 13584,13584
• Citation: 38 Conn.App. 801,663 A.2d 1094
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Andrew OWENS.

Page 1094

663 A.2d 1094

38 Conn.App. 801

STATE of Connecticut v. Andrew OWENS.

No. 13584.

Appellate Court of Connecticut.

Argued May 2, 1995.

Decided Aug. 22, 1995.

Certification Denied Sept. 28, 1995.

Michael J. Isko, Assistant Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Assistant State's Attorney, with whom were Corinne Klatt, Supervisory Assistant State's Attorney, and, on the brief, John A. Connelly, State's Attorney, for appellee (State).

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

FRANCIS X. HENNESSY, Judge.

The defendant appeals from the judgment of conviction, following a jury trial, of manslaughter in the first degree, in violation of General Statutes § 53a-55(a)(3). ¹ The defendant claims that the trial court improperly denied his motion to suppress pretrial photographic identifications because both the array and the procedure surrounding the photographic identifications were unnecessarily suggestive. ² We affirm the judgment of the trial court.

First, the defendant claims that the array was unnecessarily suggestive in that (1) three of the eight photographs could be eliminated because two individuals were smaller and another individual had longer hair, (2) only the defendant had his eyes closed in the pictures, (3) the defendant's photograph was in the lower right corner of the array, and (4) the witnesses had only eight pictures from which to choose. Second, the defendant claims that the identification procedure was unnecessarily suggestive because (1) the witnesses were together when each gave a description of the assailant at the scene, (2) the witnesses were in the same room while they waited to see the array and had an opportunity to speak to one another, and (3) at least one witness was told that the defendant was in the array.

On December 14, 1993, the trial court conducted an evidentiary hearing on the defendant's motion to suppress. The trial court made the following findings of fact in denying the defendant's motion to suppress.

There were five identification witnesses: Edward Thomas, Lawrence "Bernard" Saunders, Melissa Minnifield, Kaishawda Minnifield, and Shaneeka Counsel. Each witness saw the defendant confront the victim, Ragar J. Overstreet, at 10 Bronson Street in Waterbury. The witnesses saw the defendant argue with Overstreet for several minutes and then pull out a gun, shoot Overstreet and leave. Each witness had a considerable amount of time to observe the events associated with the shooting of Overstreet, and the attention of each was directly focused on the argument between the defendant and Overstreet prior to the shooting.

The court further found that within hours of Overstreet's death each witness made the photographic identification that now forms the basis of the defendant's appeal, that each witness viewed the array alone in a room at the police station and that although an officer was present no one led any witness to a particular photograph. After examining the array, which the state introduced into evidence, the court also found that each of the photos is a reasonable "look-a-like" and that the photographic exhibit was not so unnecessarily suggestive as to violate the defendant's sixth amendment rights. The trial court concluded that the defendant failed to prove that the challenged pretrial identification procedures gave rise to a very substantial likelihood of irreparable misidentification.

The decision of whether a pretrial identification procedure violates a defendant's due process rights is an ad hoc determination and involves a two-pronged test. State v. White, 229 Conn. 125, 161, 640 A.2d 572 (1994); State v. Howard, 221 Conn. 447, 453, 604 A.2d 1294 (1992); see also State v. Arena, 33 Conn.App. 468, 474, 636 A.2d 398 (1994). The first prong of the test is whether the identification procedure was unnecessarily suggestive. "An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification." State v. White, supra, 229 Conn. at 161-62, 640 A.2d 572; State v. Arena, supra, 33 Conn.App. at 473-74, 636 A.2d 398; see Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). If the trial court finds the procedure unnecessarily suggestive, it proceeds to the second prong to inquire whether, under the totality of the circumstances, the identification was nevertheless reliable. State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). "The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable." State v. White, supra, 229 Conn. at 162, 640 A.2d 572; State v. Payne, 219 Conn. 93, 106, 591 A.2d 1246 (1991).

"Upon review of a trial court's denial of a motion to suppress, [t]he court's conclusions will not be disturbed unless they are legally and logically inconsistent with the facts. State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991).... State v. MacNeil, 28 Conn.App. 508, 512-13, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). The trial court's factual findings will be reversed only if they are clearly erroneous. State v. Jones, 193 Conn. 70, 79-80, 475 A.2d 1087 (1984); State v. Zindros, 189 Conn. 228, 244, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1014, 79 L.Ed.2d 244 (1984). State v. MacNeil, supra, 28 Conn.App. at 513, 613 A.2d 296. Our review of the trial court's action involves a two part procedure. First, where the court's legal conclusions are challenged, we must decide if they are legally and logically correct, and if they are supported by the facts set forth in the memorandum of decision. State v. Zindros, supra, 189 Conn. at 238, 456 A.2d 288. Second, if the factual basis of the court's decision is challenged, we must determine whether the facts in the memorandum are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Id. State v. MacNeil, supra." (Internal quotation marks omitted.) State v. Fields, 31 Conn.App. 312, 319, 624 A.2d 1165 (1993), cert. denied, 226 Conn. 916, 628 A.2d 989 (1993).

"[W]hile it is not this court's function to find facts; State v. Reagan, [209 Conn. 1, 8, 546 A.2d. 839 (1988) ]; since the defendant challenges the trial court's factual and legal conclusions, we may look not only to the facts set forth in its memorandum of decision to see if they are legally and logically correct, but to the evidence in the whole record to see if those facts are clearly erroneous. State v. Zindros, supra, [189 Conn. at] 238 ." State v. MacNeil, supra, 28 Conn.App. at 515, 613 A.2d 296. The trial court, in its written memorandum of decision, made detailed factual findings in connection with some, but not all, of the defendant's claims on appeal. Therefore, we will refer to the evidence produced in support of the trial court's ruling as necessary in addressing the defendant's claims. See State v. MacNeil, supra, at 515, 613 A.2d 296; State v. Martin, 2 Conn.App. 605, 614, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S.Ct. 2706, 86 L.Ed.2d 721 (1985).

I

The defendant claims numerous deficiencies with the array itself. The defendant argues that these deficiencies created an unnecessarily suggestive array and tainted subsequent in-court identifications. We disagree.

A

The defendant first claims that three of the photographs were of men not similar to him in appearance. He claims that two of the men photographed were smaller than he and that one of the men had longer hair.

Our courts have long embraced the fundamental proposition that "[a]ny array composed of different individuals must necessarily contain certain differences." State v. Vaughn, 199 Conn. 557, 564, 508 A.2d 430 (1986), cert. denied, 479 U.S. 989, 107 S.Ct. 583, 93 L.Ed.2d 585 (1986); State v. Boscarino, 204 Conn. 714, 726, 529 A.2d 1260 (1987). Therefore, the defendant's claim must fail if the characteristics of the other individuals in the array "were not so radically different from the defendant's as to make his photograph distinctive." State v. Boscarino, supra, at 727, 529 A.2d 1260.

After hearing testimony and argument on the motion to suppress and viewing the array, which was admitted as an exhibit, the trial judge specifically found that "each of the photos is a reasonable 'look-a-like'...." Our review of the record, including an examination of the array, reveals that the court's conclusion was not clearly erroneous, as the defendant was depicted with other men of approximately the same age and physical characteristics. See State v. Boscarino, supra, 204 Conn. at 727, 529 A.2d 1260.

B

The defendant next claims that the array was unnecessarily suggestive because the defendant was the only person in the array with his eyes closed. This fact, however, cannot be said to have suggested to the witnesses that they should pick the defendant's photograph.

In State v. Fullwood, 193 Conn. 238, 476 A.2d 550 (1984), our Supreme Court analyzed a claim by a defendant that an array was unnecessarily suggestive because the defendant's picture was the only one in the array that showed the presence of a scar on his head. The court disposed of the claim on the basis that the scar could not "fairly be considered to have been any signal to the witnesses that the defendant was the person whom the police believed to be the perpetrator of the robbery." Id., at 248, 476 A.2d 550. In the absence of any evidence that the fact that the defendant's eyes were closed contributed to the selection of the defendant from the array, Fullwood controls. The fact that the defendant's eyes were closed in the picture no more signals that the police believed the defendant was the perpetrator of the crime than does the presence of a scar. ³

C

The defendant next contends...