State v. Perez

• Decision Date: 17 December 1985
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Francisco PEREZ.

Page 368

502 A.2d 368

198 Conn. 68

STATE of Connecticut v. Francisco PEREZ.

Supreme Court of Connecticut.

Argued Nov. 5, 1985.

Decided Dec. 17, 1985.

Robert F. McWeeny, with whom was Helen Apostolidis, Hartford, for appellant (defendant).

John J. Bracken III, Sp. Asst. State's Atty., with whom, on brief, were John M. Bailey, State's Atty., Carl Schuman, Asst. State's Atty., Enrico Vaccaro, Former Asst. State's Atty., and Maria F. McKeon, Law Student Intern, for appellee (state).

Before PETERS, C.J., and HEALEY, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

PETERS, Chief Justice.

The only issue on this appeal is the admissibility of an in-court identification of the defendant. The defendant, Francisco Perez, a/k/a Jorge Sanchez, appeals his conviction, after a jury trial, of the crimes of robbery in the first degree, in violation of General Statutes § 53a-134(a)(4), and possession of a sawed-off shotgun, in violation of General Statutes § 53a-211(a). ¹ We find no error.

The jury could reasonably have found the following facts relevant to this appeal. On the morning of October 16, 1980, an elderly package store owner was working alone behind the counter of his store in West Hartford when two men entered. The first to enter was an Hispanic man who bought a can of beer, left, and then returned to buy a lottery ticket that he had earlier contemplated purchasing. The second was the defendant, who initially went to the back of the store to obtain a can of beer and then came to the store counter, displayed a sawed-off shotgun, and told the store owner that he was being held up. The first man, after emptying the cash register, took the store owner to a back room, ordered him to remove his clothes, and threatened to kill him if he reappeared. In the meantime, the defendant had set off a bell by the door. The store owner, although frightened by the robbery, had the opportunity to observe the defendant across the counter, a distance of some three feet, when the defendant first threatened him, and again from the entrance to the back room when the defendant set off the bell, a distance of some twelve feet. The robbery in its entirety took between four and five minutes.

The police arrived on the scene almost immediately and obtained a description of the two robbers from the store owner. He described the defendant as a thirty year old, clean-shaven, dark-complected man with braided hair, white freckles and a scar under his right cheek. The store owner mistakenly characterized the defendant as a black man. The store owner also described the defendant's head as being rounder and larger than that of his accomplice, and described an item of the defendant's clothing, a knee-length overcoat of a light color.

Although only the store owner had observed the crime itself, three witnesses, including a police officer, saw two men walking rapidly from the scene of the crime and speeding away in an orange car. The orange car was soon discovered at a local housing project, in a parking place previously unoccupied and with its hood hot to the touch. The car was parked in front of the apartment where the police located the defendant and his accomplice. In their search of the apartment, the police found a sawed-off shotgun, the keys to the orange car, and other evidence linking the defendant with the crime. The orange car bore the defendant's fingerprints.

About one hour after the robbery, the police brought the store owner to the housing project, telling him that the men who had robbed him might be there. There were a number of police cars in the general area. The defendant and his accomplice were standing among a group of eight to twelve people, including some policemen in plain clothes, in the vicinity of approximately one hundred people, most of whom were blacks or hispanics. Although the defendant was handcuffed behind his back, the handcuffs were at least in part concealed by a jacket draped over his shoulder. The store owner selected only two men out of the group, the defendant and his accomplice. The store owner told the police that he could positively identify the accomplice, but that he was not 100 percent sure of the identity of the defendant. Later that day when the store owner again viewed the robbers, this time outside of a police car in front of his package store, the store owner repeated his positive identification of the accomplice and his lack of complete certainty about the defendant. The store owner was then only 70 percent certain about the defendant's identity because, in reflecting upon the robbery after it was over, the store owner was traumatized by the events of the day. ² The next day, however, having considered the matter further, he had no doubts about his identification of the defendant.

At the defendant's trial, the store owner made an unqualified in-court identification of the defendant as one of the two individuals who had robbed him on October 16, 1980. The defendant moved that this in-court identification be suppressed as resulting from the pretrial identifications which the defendant characterized as suggestive and unreliable. After a hearing in the absence of the jury, the trial court denied the defendant's motion. Without expressly ruling on the alleged suggestiveness of the pretrial identifications, the court held that the in-court identification was admissible because it was independent of the earlier identifications and resulted instead from the store owner's recollection of the crime itself. The defendant took an exception to the court's ruling. This ruling is the sole basis for the defendant's appeal.

The defendant asks us to order a new trial for four reasons arising out of the contested in-court identification. The defendant claims that: (1) the pretrial showup procedure employed by the police, first at the housing project and later at the package store, was unnecessarily suggestive; (2) the identification was not, in the totality of the circumstances, reliable; (3) the in-court identification was not adequately proven to have been independent of the unnecessarily suggestive and unreliable pretrial identification; and (4) the admission of an in-court identification tainted by an unconstitutional pretrial identification cannot be harmless error and therefore requires reversal. Because we find that the in-court identification was properly admitted, we need not address the last of these claims. ³

We have often stated the test that governs the suppression of identification evidence derived from procedures that are challenged as violative of a defendant's constitutional rights to due process. In order to succeed on his motion to suppress, the defendant must prove (1) that the identification procedures were unnecessarily suggestive; and (2) that the resulting identification was not reliable in the totality of the circumstances. State v. Hinton, 196 Conn. 289, 292-93, 493 A.2d 837 (1985); State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985); State v. Myers, 193 Conn. 457, 464, 479 A.2d 199 (1984); State v. Gordon, 185 Conn. 402, 413, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982); State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); and see Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199-201, 93 S.Ct. 375, 382-383, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

The defendant's argument that the identification in this case was unnecessarily suggestive rests on his contention that what occurred at the housing project was a one-on-one show-up that could have been avoided had the police chosen to organize a line-up. Whenever someone is asked to identify a person under circumstances in which it is evident that the police believe the person to be a suspect, there is a significant risk that the ensuing identification will have resulted from the suggestiveness of the procedure rather than from the viewer's independent recollection. State v. Dupree, 196 Conn. 655, 667, 495 A.2d 691 (1985) (single photograph); State v. Guertin, 190 Conn. 440, 456, 461 A.2d 963 (1983) (hospital identification in presence of police officer); State v. Maturo, 188 Conn. 591, 595-96, 452 A.2d 642 (1982) (four persons shown to a victim who had been robbed by only three); State v. Hamele, 188 Conn. 372, 375-77, 449 A.2d 1020 (1982) (show-up at crime scene); State v. Brown, 187 Conn. 602, 614-17, 447 A.2d 734 (1982) (station house show-up); State v. Gordon, supra, 185 Conn. at 416-417, 441 A.2d 119 (station house show-up); State v. Theriault, supra, 182 Conn. at 371-73, 438 A.2d 432 (police barracks show-up). The facts of this case do not, however, demonstrate a one-on-one confrontation between victim and suspect. When the store owner first saw the defendant at the housing project, the defendant was among a group of people who resembled him in racial makeup. According to the testimony at trial, the defendant's handcuffs were not visible to the store owner, and the police officer guarding the defendant was wearing plain clothes. These facts, together with the desirability of promptly establishing either the defendant's complicity or his innocence; Simmons v. United States, supra, 390 U.S. 384, 88 S.Ct. at 971; Bates v. United States, 405 F.2d 1104, 1106 (D.C.Cir.1968); State v. Hamele, supra, 188 Conn. at 377, 449 A.2d 1020; State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976); remove this case from the category of an unnecessarily suggestive identification procedure. The store owner's reluctance to make an immediate uncategorical identification of the defendant is not evidence of an initial misidentification but rather demonstrates the conduct of a witness exercising independence of judgment under stressful circumstances.

The conduct of the police in returning the defendant and his accomplice to the package store for a...