State v. Panella

• Decision Date: 03 June 1975
• Citation: 362 A.2d 953,168 Conn. 532
• Parties: STATE of Connecticut v. Salvatore PANELLA.
• Court: Connecticut Supreme Court

Page 953

362 A.2d 953

168 Conn. 532

STATE of Connecticut v. Salvatore PANELLA.

Supreme Court of Connecticut.

June 3, 1975.

W. Paul Flynn, New Haven, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Edward J. Mullarkey, Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

HOUSE, Chief Justice.

On a trial to a jury, the defendant was found guilty of one count of forgery and one count of obtaining money by false pretenses in violation of §§ 53-346 and 53-360 of the General Statutes respectively. On his appeal to this court, the defendant has first assigned error to the denial of his motion to set aside the verdict as unsupported by the evidence. Such a claim is tested by the evidence printed in the appendices to the briefs. State v. Lally,167 Conn. 601, 603, 356 A.2d 897; State v. Saia, 167 Conn. 286, 287, 355 A.2d 88.

From that evidence the jury could reasonably have found the following facts: On August 27, 1968, at about 11:30 a.m., two men, one of whom was the defendant, went to Mike's Auto Sales at 578 Bridgeport Avenue in Milford and inquired of Michele Macaluso, the operator, about buying a used car. While the three men conferred in the car lot from which Macaluso could not see into the office, one of the men asked if he could use the telephone to call his girl friend to see if she would be interested in the car under consideration. Macaluso consented and the man went into the office to use the telephone. The man who remained talking to Macaluso outside on the lot while the other man entered the office was the defendant, Salvatore Panella. About twenty minutes later, after the defendant and his companion had left the premises, Macaluso discovered something was missing in the office. He noticed that the clip-ons on the checkbook were opened and all the checks were out. His wife came in five or ten minutes later and said there were nine pages of checks missing from the back of the checkbook which had been kept in the top of an unlocked desk drawer in the office. Between 12:30 p.m. and 1 p.m., Macaluso and his wife called the bank to report the checks stolen. Macaluso identified state's exhibit A as a check from his checkbook. Neither the handwriting nor the signature on state's exhibit A is that of Macaluso. He spells his name 'Michele,' and the name on the exhibit is spelled 'Michael.'

On that same date, 'August 27, 1968, Mrs. Gayla Sullivan was employed as a teller in the Milford branch of the First New Haven National Bank. Between noon and 1 p.m. on that day, she cashed the check identified as exhibit A drawn on Mike's Auto Body in the amount of $1400. The defendant was the man who cashed the check. Without objection in either instance, during the trial Macaluso identified the defendant as the man who remained with him in the car lot while his companion went to the office to telephone and Mrs. Sullivan, the teller, identified him as the man for whom she cashed the $1400 check drawn on Mike's Auto Body.

The defendant in his defense offered evidence of an alibi and a claim of mistaken identity. The decisive issues, therefore, resolved themselves into questions of credibility. Such questions are to be determined by the jury as the trier of fact, and the evidence must be given a construction which is most favorable to the sustaining of the jury's verdict. State v. Malley, Conn., 167 Conn. 379, 381, 355 A.2d 292; State v. Benton, 161 Conn. 404, 409, 288 A.2d 411; State v. White, 155 Conn. 122, 123, 230 A.2d 18. There was ample evidence to support the jury's verdict and we find no error in the ruling of the trial court denying the defendant's motion to set aside the verdict on the ground that it was not supported by the evidence.

The defendant's remaining assignment of error are all concerned with evidence submitted as to the pretrial photographic identification of the defendant by the bank teller, Mrs. Sullivan. At the trial, Mrs. Sullivan, called by the state, identified in the courtroom in the presence of the jury the defendant as the person who cashed the stolen and forged check. The defendant made no objection whatsoever to this incourt identification which was made prior to any reference during the trial to photographs. Mrs. Sullivan thereafter testified, also without objection, that she had also been asked to view certain photographs. She stated that she was not sure that she could then recognize the photographs which had been displayed to her. At this point, the jury was excused and Mrs. Sullivan was asked to remain outside the courtroom in order that her testimony would not be influenced by the colloquies of counsel. The defendant then indicated that he wished to raise the issue of the suggestibility of the police procedure in showing the photographs to the witness for pretrial identification in order to discover if it was so impermissibly suggestive as to taint the in-court identification which had already been made without objection. The defendant stated that he wished to raise this issue and have a ruling on it outside the presence of the jury. The court, however, ruled that everything would be done in the presence of the jury, to which ruling the defendant objected. The state then proceeded with its examination of Mrs. Sullivan. The purport of Mrs. Sullivan's testimony regarding the photographic pretrial identification was that on August 30, 1968, two Milford police officers asked her to look at some photographs to see if she could make an identification. Mrs. Sullivan identified, for the police authorities, the photograph which is state's exhibit B1, as portraying the person who cashed the check. On a second occasion, September 4, 1968, Mrs. Sullivan was again shown photographs by the police and she picked out state's exhibit C1 as a photograph of the person who cashed the check. State's exhibit B1 is a photograph of the defendant taken August 23, 1965. State's exhibit C1 is a photograph of the defendant taken July 29, 1962. On both occasions, Officer Patrick F. McDonald of the Milford police department displayed the photographs to Mrs. Sullivan. Officer McDonald's purpose in having Mrs. Sullivan view photographs on a second occasion was to present her with different age groups to see if she could still make a positive identification. The witness again, and for the last time, saw these photographs, along with certain others that had been shown to her, at the probable cause hearing held on the defendant's case in the Circuit Court in June of 1969, almost a year and a half before the defendant's trial. Officer McDonald testified that when the photographs were shown to Mrs. Sullivan, nothing was said to her except that the police would like her to look through some photographs and see if she could identify any of them as the person who cashed the check. On each...