State v. Parker, 83-158-C
| Citation | 472 A.2d 1206 |
| Decision Date | 13 March 1984 |
| Docket Number | No. 83-158-C,83-158-C |
| Parties | STATE v. Calvin PARKER, Jr. A. |
| Court | Rhode Island Supreme Court |
The defendant, Calvin Parker, Jr., appeals his conviction in the Superior Court of the crimes of robbery and leaving the scene of an accident. He challenges the validity of the victim's eyewitness identification, the limitation of cross-examination by the trial justice, and the sufficiency of the jury instructions. We affirm.
On July 24, 1979, Maria Kattke was working at a gift shop in the city of Central Falls. At approximately 11:30 a.m., a man whom she recognized from a previous visit entered the shop. After speaking with Kattke, he browsed around the store for about five minutes while she worked behind the counter. He then grabbed her from behind and held a sharp object to her neck. She struggled with him and then was thrown to the ground. During the struggle, Kattke received slash wounds to her neck and right hand. The man emptied the shop's cash drawer of approximately $65. He took her into the back room and shut her in the bathroom. Upon hearing the buzzer signaling that the front door had opened, she left the bathroom and went to the front of the store. She saw the man get into the driver's side of a car that had been parked outside and drive away. Kattke was subsequently taken to the hospital where she received approximately thirty stitches.
Kattke described the robber to the police as approximately thirty years old, six foot three inches to six foot four inches tall, slim in build, clean-shaven, 1 and wearing a light-colored hat with a wide brim, a black flowered shirt, tan trousers, and a chain and medallion around his neck.
On the same day as this robbery, Nancy Robichaud was involved in a car accident with a man who fit the description of the robber. The man came up to Robichaud's car and asked if anyone was hurt. He then got back into his car, drove up the street a short way, got out of the car, and headed off on foot. Approximately two weeks after the accident, Robichaud was shown a book of photographs that included a picture of defendant. She identified defendant as the individual involved in the accident.
On the night of the robbery, the police showed Kattke a photograph that they obtained from a wallet they found in the abandoned car that was involved in the accident with Robichaud. The photograph was of defendant and a woman apparently at their wedding. Kattke tentatively identified defendant as the individual who had robbed her.
On July 29, 1979, Kattke viewed eight to ten books containing mugshots. She did not identify anyone. The defendant's picture was not included in any of these books. On August 1, 1979, Kattke identified a picture of an individual who she said resembled defendant but was not him.
On the morning of August 3, 1979, Kattke was shown a group of eight photographs. A photograph of defendant that had been obtained from a police department in New Jersey was included in this photo array. Kattke identified defendant as the man who had robbed her.
The police arrested defendant on August 3, 1979 at his attorney's office after receiving a call from the attorney that his client had been involved in a hit-and-run accident and wanted to surrender. After being transported to the police station and informed that he would have to wait before the police obtained enough people to conduct a lineup, he requested that the police arrange a one-on-one confrontation between him and Kattke. At the confrontation, Kattke identified defendant as the robber although she stated that he appeared to be shorter than she remembered the robber to be. A few days later Kattke went to the police station to give the reason she believed explained the height discrepancy. She informed the police that on the day of the crime she had been wearing flat shoes and the robber high-heeled ones. In contrast, on the day of the identification, she was wearing three- to four-inch heels whereas defendant was wearing sneakers.
At trial, defendant testified that he had been a customer at that gift shop on three different occasions. He testified that on July 24, 1979, he was in his car with a friend who was driving. He stated that his friend pulled into the parking lot near the gift shop and went into a store, leaving defendant behind. The friend then got back into the car and told defendant that he had just robbed the woman in the gift shop. He sped away and within minutes collided with the car driven by Robichaud. The defendant testified that after the accident his friend lay sprawled across the back seat of the car. The defendant got out of his car and asked if anyone in Robichaud's car was hurt. He then returned to his car, drove it up the street, stopped, and fled on foot. He told the jury that his friend wore clothing that day matching the description of that worn by the robber which was given by Kattke.
At trial, Kattke identified defendant as the man who had robbed her on July 24, 1979, and Robichaud identified him as the man who was involved in the car accident that same day. The jury found defendant guilty of robbery and of leaving the scene of an accident, and defendant appealed.
The defendant claims that the procedures used by the police in the identification process were so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. He asserts that the showing of a single photograph to the victim on the night of the robbery and the showing of defendant singly to her after his arrest gave rise to unconstitutional identification procedures. The practice of showing suspects to persons either singly in photographs or singly in person for the purpose of identification, and not part of a lineup, has been widely condemned. Stovall v Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967). 2 The show-up procedures are suggestive because the police in effect say, "This is the man." See Biggers v. Tennessee, 390 U.S. 404, 407, 88 S.Ct. 979, 981, 19 L.Ed.2d 1267, 1269 (Douglas, J., dissenting), reh. denied, 390 U.S. 1037, 88 S.Ct. 1401, 20 L.Ed.2d 298 (1968). However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances, Stovall v. Denno, supra, and a determination that the identification lacks independent reliability despite the suggestive nature of the procedures used. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977); State v. Nicoletti, 471 A.2d 613 (R.I., 1984). To determine whether the pretrial identifications were independently reliable, the following factors should be considered:
" * * * the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972).
We turn then to a brief review of the facts of this case as they pertain to each of these five factors.
Kattke spoke with the robber when he entered the shop, and he browsed around inside the shop for about five minutes. He was not wearing any mask or other covering on his face. When she was dragged into the back room, she was face to face with the robber and was not more than a foot away from his face while they struggled. She again saw the man as he got into his car and drove away.
The perpetrator was the only person in the store at the time of the incident, thereby allowing her to direct her full attention toward him. Also, she directed her attention toward the fleeing man in an attempt to identify the car and the perpetrator.
Kattke described her assailant on the day of the robbery as approximately thirty years old, six foot three inches to six foot four inches tall, slim in build, and wearing a light-colored hat with a wide brim, a black flowered shirt, tan trousers, and a...
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