State v. Pailon, 90-152-C

• Decision Date: 30 April 1991
• Docket Number: No. 90-152-C,90-152-C
• Citation: 590 A.2d 858
• Parties: STATE v. Daron PAILON. A.
• Court: Rhode Island Supreme Court

Page 858

590 A.2d 858

STATE v. Daron PAILON.

No. 90-152-C.A.

Supreme Court of Rhode Island.

April 30, 1991.

James E. O'Neil, Atty. Gen., Jeffrey Greer, Asst. Atty. Gen., Jane McSoley, Sp. Asst. Atty. Gen., for plaintiff.

Richard Casparian, Public Defender, Barbara Hurst, Asst. Public Defender, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on the defendant's appeal from a judgment of conviction of robbery entered in the Superior Court. We affirm. The facts of the case insofar as pertinent to this appeal are as follows.

On January 27, 1987, between 1:30 and 2 p.m., Sharon Voller was in a retail jewelry store owned by her and operated under the name Designer Jewelry. Paul Jestings was also present in the store, engaged in electrical repair work. Two men entered the store, and one of them inquired about the purchase of a wedding band and an engagement ring. After some discussion about price range, Voller informed the man that she had nothing within his price limit of $500. He responded that he would come back later after he received an expected check from the government. The two men spent a total of about five to ten minutes in the store. The man who inquired about the ring identified himself as Charlie Edwards. The second man also asked about the price of a gold chain. Both men left the store without incident.

That same afternoon, somewhere between 4:30 and 5 p.m., Voller was alone in the store and engaged in a telephone conversation with her sister-in-law. The man who had been the companion of the person who identified himself as Charlie Edwards entered the store. This man was later identified as Daron Pailon, defendant. Voller signaled defendant to wait, indicating that she would be right with him. Because she was somewhat anxious, Voller left the telephone off the hook so that her sister-in-law might hear the exchange between her and defendant and then went to wait on him. He asked to see a gold chain. When Voller opened the showcase in order to present the chain for inspection, defendant grabbed her dress and jumped over the showcase. He then placed his hand over her mouth and forced her into a back room. As she passed the showcase, Voller screamed. Upon entering the back room, defendant threw Voller on the floor, took out a gun, and pointed it at her, holding it close to her mouth and saying "[Y]ou saw me, you bitch, you saw me." He momentarily left her and then took her into the bathroom. There he struck her repeatedly in the face and head with such force that at one point her head was driven through the bathroom wall.

After the beating, defendant ordered Voller to open the safe. She replied that it was already open. He took the contents, which consisted of about $500 in cash and her partner's gun. He then dragged her back to the front portion of the store and ordered her to open the showcase. He told her next that he needed a bag, and Voller went to the rear of the store to obtain one. On her way she pressed a silent alarm affixed to her desk. The defendant joined her in the rear of the store, took a money bag lying on the floor, and seized Voller's purse. The defendant finally ordered her to go into the back room, and she complied. Before entering the back room, she noticed the other man who had entered the store earlier and inquired about the ring--he was outside the store, walking back and forth.

A minute or two after she had gone into the back room, Voller heard the door open. She asked who was there but received no reply. She came to the front of the store and saw that the robber had left. Shortly thereafter, detectives of the Newport police department arrived. She was taken to the Newport Hospital where she received treatment for her injuries. She later determined that the robber had taken jewelry valued at approximately $25,000 in wholesale value and $45,000 in retail value.

Voller, experiencing considerable pain and discomfort from her injuries, was given a prescription for Valium. She gave a general description of her assailant as a clean-cut black man with a light mustache, in his late twenties, who weighed approximately 140 pounds, and wearing dark dungarees and a sweatshirt. The day after the robbery, Voller went to the Newport police station in order to give a statement. At that time she was shown a photographic array (consisting of thirty to thirty-five photos) that included a photograph of Daron Pailon. She was unable to make a positive identification but later testified that she not only was very upset and nervous but was also under the effects of the Valium.

About four weeks later, on February 26, 1987, a man who identified himself as Derek Anderson came into her store and told her that the two individuals who had participated in the robbery were Daron Pailon and a man called Bo Bo Perryman. Anderson told her that the same two men had robbed his mother several years before. Voller told Anderson that she needed more information. Several days later Anderson called Voller and told her that he could direct her to a certain location where she would find a woman wearing some of the jewelry stolen in the robbery. She did not act upon this information. The day after the phone call Anderson again came to Voller's store. This time he showed her a photograph. Upon viewing the photograph, Voller instantly recognized the person who had assaulted and robbed her. Voller gave the photograph to a security guard employed at her store, who turned it over to the Newport police. No further activity took place on the case until June 1987.

At that time she received a summons from the Newport police to view a lineup at the station. She viewed the participants in the lineup for five to ten minutes and then selected defendant as her assailant. She later testified that she recognized defendant instantly but considered very carefully before identifying him to the police. At trial defendant's mother testified on his behalf and stated that he had worn a goatee since he was eighteen years old and was never clean shaven. She also testified that at the time of the alleged robbery, defendant weighed from 170 to 175 pounds.

In support of his appeal, defendant raises four issues. These issues will be considered in the order in which they were presented in defendant's brief. Additional facts will be furnished as required to deal with these issues.

I THE MOTION TO SUPPRESS THE IN-COURT IDENTIFICATION

The defendant argues that the eyewitness-identification testimony of Sharon Voller should not have been admitted into evidence because it was tainted not by any police or prosecutorial action but as a result of the suggestions made by Derek Anderson and the photograph he displayed to Voller after the robbery. It is important to note that the trial justice specifically found during the course of a preliminary hearing that a lineup conducted by the Newport police on June 4, 1987, was the fairest lineup in terms of the similarity of appearance of all persons included therein that the judge had seen in his fifteen years on the bench. The trial justice also found that Voller's in-court identification of defendant was reliable and based upon her recollection of her encounter with defendant "completely independent of the pre-trial procedures" including both the photograph presented by Anderson and the lineup conducted by the Newport police on June 4, 1987. This finding would insulate the identification testimony from any exclusionary rule promulgated by the Supreme Court of the United States, even if a pretrial procedure was unnecessarily suggestive as in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Camirand, 572 A.2d 290 (R.I.1990); State v. Taylor, 562 A.2d 445 (R.I.1989); State v. Nicoletti, 471 A.2d 613 (R.I.1984).

Nevertheless, since this case presents an issue of first impression in this jurisdiction, we believe that some analysis of the question of suggestive procedures by private persons and their effect upon admissibility of otherwise relevant evidence should be undertaken. This analysis will require a review of the formation and application by the Supreme Court of exclusionary rules that have been fashioned to protect constitutional interests. There seems little doubt that the Court's exclusionary rule relating to evidence obtained in violation of the Fourth Amendment was directed entirely at the deterrence of illegal police procedures, whether the evidence illegally obtained was reliable or unreliable. See, e.g., Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987); United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Stone v Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Because the exclusionary rule in respect to Fourth Amendment violations is based upon the deterrence of illegal police or prosecutorial actions, it is not triggered by the actions of private persons however egregious they may be. United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). Such activities would withstand not only Fourth Amendment but due-process analysis as well. See Colorado v. Connelly, 479 U.S. 157, 166, 107 S.Ct. 515, 521, 93 L.Ed.2d 473, 483 (1986).

A similar prophylactic rule was fashioned by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), designed to protect the Fifth Amendment privilege against self-incrimination from dilution or erosion as a result of in-custodial interrogation by the police or law-enforcement authorities. This prophylatic rule was determined by the Court, after a due-process analysis, to be inapplicable in a situation in which, without any prosecutorial or police intervention, a defendant...