State v. Packard

Decision Date26 May 1981
Citation184 Conn. 258,439 A.2d 983
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. David A. PACKARD.

Prescott W. May, Seymour, with whom were Lawrence J. Legenza, New Britain, and, on the brief, Arthur J. O'Neill, Southbury, for appellant (defendant).

Paul E. Murray, Asst. State's Atty., with whom, on the brief, was Francis M. McDonald, State's Atty., for appellee (state).

Before BOGDANSKI, PETERS, HEALEY, ARMENTANO, and WRIGHT, JJ.

ARMENTANO, Associate Justice.

After a trial to the jury, the defendant, David A. Packard, was found guilty of the crimes of sexual assault in the first degree and of burglary in the second degree in violation of General Statutes §§ 53a-102 1 and 53a-70, 2 respectively. He was found not guilty of the crime of larceny in the third degree in violation of General Statutes § 53a-124.

The facts in this case are as follows. The victim, a twenty-four-year-old female at the time of the incident, lived alone in the second floor apartment of a house owned by her family. Her bedroom was illuminated by a night light in the adjacent kitchen. At approximately 3 o'clock, on the morning of January 25, 1978, the voice of a male intruder, sitting on her bed, awoke her. He had gained access into the apartment by slitting a screen and unlocking two bathroom window latches. After she awakened, the intruder continued to speak to her, displaying a knowledge of her personal background and indicating his intent to have sexual intercourse with her. He forcibly overcame her attempts to flee or scream and sexually assaulted her. During and after the sexual assault, he continued his discussion with the victim. He eventually departed, threatening reprisal if she reported the attack to the police. The entire incident lasted approximately twenty to twenty-five minutes.

The victim immediately contacted the police and described both her assailant and his voice, as well as the odor of alcohol on his breath. At 1 p. m. on the same day, at the Bethany state police barracks, she constructed, with the assistance of a state trooper, and in approximately one hour, a composite picture of the perpetrator of the sexual assault.

On January 27, the victim identified the defendant from a display of eight photographs. After the identification, she informed the police that she could probably recognize her assailant's voice as well. On January 31, the police arranged a voice identification procedure in which the victim listened to six individual interviews. She immediately recognized the defendant's voice as that of the perpetrator, physically and emotionally responding to it. During the voice identification procedure, the police allowed no visual contact between the victim and the participants.

The police arrested the defendant on February 14 pursuant to an arrest warrant issued on the same day.

On January 9, 1979, while sitting on a bench in the courthouse lobby and waiting for the first day of trial to begin, the victim spotted and identified the defendant. This encounter was coincidental, and other people were milling about the lobby at the time.

The court denied the defendant's motion to suppress and allowed into evidence the composite, the photographic identification, the voice identification and the courthouse lobby identification in addition to an in-court identification of the defendant.

I

The defendant first claims that the voice identification testimony violated his constitutional rights to due process. On appeal, he does not challenge the testimony pertaining to the photographic, the courthouse lobby, or the in-court identifications.

The "use of out-of-court police identification procedures may give rise to a claimed violation of due process of law if the conduct of the procedure in a given instance was 'unnecessarily suggestive and conducive to irreparable mistaken identification,' a claim whose adjudication, however, 'depends on the totality of the circumstances surrounding it.' Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199." State v. Hafner, 168 Conn. 230, 235, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S.Ct. 95, 46 L.Ed.2d 74 (1975); see State v. Johnson, Jr., --- Conn. ---, pp. ---, ---, 438 A.2d 855 (1981); State v Anderson, 178 Conn. 287, 291, 422 A.2d 323 (1979); State v. Willin, 177 Conn. 248, 251, 413 A.2d 829 (1979); State v. Harden, 175 Conn. 315, 319 n.2, 398 A.2d 1169 (1978); State v. Kinsey, 173 Conn. 344, 346-47, 377 A.2d 1095 (1977).

"In determining whether identification procedures violate a defendant's due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was impermissibly suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the 'totality of the circumstances.' See State v. Gold, 180 Conn. 619, 656-57, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980); State v. Piskorski, 177 Conn. 677, 741, 419 A.2d 866 (1979); State v. Willin, 177 Conn. 248, 251, 413 A.2d 829 (1979); State v. Smith, 165 Conn. 680, 684, 345 A.2d 41 (1974); see also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)." State v. Theriault, --- Conn. ---, ---, 438 A.2d 432 (1980); see State v. Anderson, supra, 178 Conn. 292, 422 A.2d 323; State v. Willin, supra, 177 Conn. 252, 413 A.2d 829; State v. Kinsey, supra, 173 Conn. 347, 377 A.2d 1095. Applying the Theriault test to this case, we first must determine whether the voice identification procedure conducted at the police barracks was unnecessarily suggestive. 3

Two police officers individually interviewed the defendant and five police officers. It was planned that the six individuals would respond to a series of questions after being informed of their right to an attorney and their right to remain silent. Although the questions related generally to the sexual assault of the victim, they were not prepared or recorded beforehand. In addition a prepared list of questions, spoken by the assailant on the night of the attack, was given to each individual to read. The entire procedure lasted approximately fifty minutes.

The police officials who participated in the voice-up were not given written responses to the questions asked of them, but were instructed to act normally and speak calmly. The victim sat behind a wall which prevented visual contact with the participants, but she was able to hear their responses through an open window. At no time either before, during, or after the voice-up did she view the participants. The police instructed her to listen to all the individuals before indicating whether she recognized any voice and to concentrate on the quality of the voices rather than the meaning of the words spoken.

The first three interviews proceeded according to the planned procedure. The fourth person to be interviewed, the defendant, responded to the questions asked of him, but when asked to read the prepared statement, he declined to do so and requested an attorney as well as a termination of the interview. The defendant's wife, who accompanied him to the interview, volunteered that the police had singled out her husband because of previous involvement in a similar incident and, likewise, requested an attorney for him. The interview ceased after these demands. The victim heard this entire exchange.

In an attempt to prevent the defendant from being singled out by the unanticipated responses, the police instructed the last two individuals to repeat the demands made by the defendant. Similarly, a female police employee accompanied the fifth or sixth participant and made responses during the interview. After the sixth interview, the victim indicated that she had recognized immediately the defendant's voice as that of her assailant. Since she never saw the participants in the voice-up, the prior photographic identification of the defendant did not taint the voice identification procedure.

The voice-up, as it evolved, borders on being "unnecessarily suggestive" thereby denying the defendant his constitutional rights to due process. We are particularly concerned that it was not recorded or based entirely on a reading of a prepared, written statement, both of which would be available for our review. Furthermore, there is no indication in the record that the wife's presence during the interview could not have been foreseen and appropriate measures taken to ensure that her presence did not single out the defendant. Finally, there is no doubt that the defendant's refusal to read the prepared statements, his demand to terminate the interview, his request for an attorney, and the reference to prior similar incidents distinguished the fourth interview from the preceding three interviews.

On the other hand, the police conducted six separate interviews, and only after the victim indicated that she would be able to recognize her assailant's voice. The lack of visual contact between the victim and the participants prevented any tainting of the voice-up by the prior photographic identification. The demands by the defendant and the presence of his wife were repeated in the fifth and sixth interviews. Most importantly, the victim testified that she immediately recognized the defendant's voice, even before the remarks that distinguished the fourth interview from the preceding three were uttered. See Roper v. Beto, 454 F.2d 499 (5th Cir. 1971), cert. denied, 406 U.S. 948, 92 S.Ct. 2053, 32 L.Ed.2d 336 (1972); note, 24 A.L.R.3d 1261, § 8.

If we assume that the pretrial voice-up was unnecessarily suggestive, our inquiry into whether the voice identification was admissible at trial does not end. The second prong of the Theriault test is reliability. "Because reliability is the...

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