State v. Pettway

• Citation: 39 Conn.App. 63,664 A.2d 1125
• Decision Date: 16 October 1995
• Docket Number: No. 12386,12386
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Jamie PETTWAY.

Page 1125

664 A.2d 1125

39 Conn.App. 63

STATE of Connecticut v. Jamie PETTWAY.

No. 12386.

Appellate Court of Connecticut.

Argued May 26, 1995.

Decided Aug. 29, 1995.

Certification Denied Oct. 16, 1995.

Deborah DelPrete Sullivan, Asst. Public Defender, for appellant (defendant).

Mary H. Lesser, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Nicholas J. Bove, Jr., Asst. State's Atty., for appellee (state).

Before EDWARD Y. O'CONNELL, FOTI and HEIMAN, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction, ¹ rendered after a jury trial, of robbery in the first degree in violation of General Statutes (Rev. to 1991) § 53a-134(a)(4) and General Statutes § 53a-133. ² The defendant claims that the trial court improperly (1) denied his motion to suppress identification evidence, (2) failed to grant a mistrial, (3) refused to allow evidence offered by him, and (4) instructed the jury on the issues of identification, flight, and reasonable doubt. The defendant also claims that the evidence was insufficient to support a conviction. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On November 22, 1992, at approximately 10:05 p.m., the victim, Henry Forte, drove to a gas station on North Main Street in Bridgeport and began pumping gas at a self-service pump. At that time, he noticed the defendant and a second man watching people at the cashier's booth. The two men approached the victim. The defendant took the gas pump from the victim's hands and dropped it on the ground, saying, "My friend has a gun, we want your money, hand over your wallet." The second man motioned with his hand under his jacket as if he had a gun. The victim then gave the wallet to the defendant, who removed $260 from it, and the two men then ran from the scene. The robbery was committed in approximately two minutes. The victim called 911 and gave a description of the two men. The police arrived at the scene within ten minutes and, approximately ten minutes later, another police car arrived. When the defendant was removed from the backseat of the second car stating that he had not committed the crime, the victim identified him as the person who had robbed him and also stated that he recognized the defendant's voice. The victim also identified the shirt the defendant was wearing as being the same type of shirt worn by the robber. The defendant was placed under arrest. He had $110 in his possession, consisting of one $50 bill and three $20 bills. The money taken from the victim consisted of one $50 bill, several $20 bills, one $10, one $5 and some $1 bills.

I

A

The defendant first argues that the trial court improperly denied his motion to suppress the out-of-court identification in violation of his constitutional right to due process. ³ He claims that the identification should have been suppressed because the procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification in violation of the fifth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution. The trial court denied the defendant's motion to suppress the victim's out-of-court identification after a full evidentiary hearing. We agree with the determination of the trial court.

"It is well settled that [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 unnecessarily suggestive, and second, if it is found to be so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances." (Internal quotation marks omitted.) State v. Monteeth, 208 Conn. 202, 206, 544 A.2d 1199 (1988). It is the defendant's burden, as the party moving to suppress identification evidence, to establish that the identification resulted from the use of an unconstitutional procedure by the police. State v. Carswell, 36 Conn.App. 336, 341, 650 A.2d 924 (1994). Our review of the record leads us to conclude that the trial court acted properly in denying the defendant's motion to suppress.

The facts presented at the hearing and relevant to this issue are as follows. The victim was approached by two men. One man stood directly in front of him and the other, the defendant, stood at the victim's side. The victim looked directly at the defendant's face. The gas station was very well lit, and the defendant was approximately two to three feet away from the victim during the robbery. The defendant was wearing a red flannel shirt, which was unbuttoned, over a white T-shirt, and sneakers. The victim believed that the defendant's pants were jeans. The other man wore a khaki or dark blue-green parka, jeans, and a fur hat. After the two men ran, the victim called the police and gave a description of both of them.

Bridgeport police officer Victor Diaz was patrolling with Sergeant Mathew Cuminotto in the Beardsely Terrace-Trumbull Avenue area, and they responded to a report of an armed robbery at Main and Overland Streets. The broadcast included a description of two black males, one wearing a hat and the other wearing a red shirt. The two men run down Overland Street toward Beardsely Terrace. Diaz and Cuminotto drove toward the location of the robbery, stopping at the corner of Chopsey Hill and Trumbull Avenue because they observed two men who matched the description walking across the street. One of the men had a fur hat. When the officers approached the two men, the one wearing the hat ran into the woods and the other, the defendant, kept walking toward the police car. The officers pulled alongside the defendant and stopped to talk with him. Cuminotto asked the defendant to go back to the robbery scene with them. The defendant was cooperative and accompanied the police without any resistance. The defendant was frisked for weapons, but was neither handcuffed nor under arrest at that time, and he was wearing a white shirt with a reddish tinge. It had been raining and the defendant appeared to be perspiring.

The officers brought the defendant to the scene in a police car within twenty minutes of the robbery. At that time, the defendant was wearing only a T-shirt and jeans. The police told the victim that they had apprehended a suspect and asked the victim to identify him. When the defendant exited the police car, the victim walked past him and heard him speaking. Once he saw the defendant and recognized his voice, the victim knew that he was the robber. The victim testified that he was positive that the defendant was the robber.

The sole purpose of the suppression hearing was to determine the validity of the one-on-one identification. The defendant's counsel argued that the identification procedure was both unnecessarily suggestive and unreliable. The court denied suppression, ruling that the identification procedure did not result in a substantial likelihood of irreparable misidentification. The defendant sought an articulation of that ruling and also asked the court to decide whether the defendant's detention had been illegal. The articulation reviewed the evidence adduced at the hearing and stated the principles of law relevant to the suppression of identification procedures. The court articulated that the show-up identification was suggestive but not unnecessarily so because it "was necessary to eliminate possible innocent parties and to provide Forte with an opportunity to identify his assailants while his memory was fresh." The court further found on the basis of the totality of the circumstances that the identification was reliable. The court made no findings concerning either the factual basis for, or the legality of, the defendant's return to the scene for the identification.

A one-on-one identification is inherently suggestive; State v. Mitchell, 204 Conn. 187, 201, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S.Ct. 293, 98 L.Ed.2d 252 (1987); it conveys the message that the police have reason to believe the suspect is guilty. State v. Maturo, 188 Conn. 591, 596, 452 A.2d 642 (1982). While such a show-up, or one-on-one confrontation, may be suggestive, it does not necessarily follow that such a procedure is impermissibly or unnecessarily suggestive. State v. King, 35 Conn.App. 781, 786, 647 A.2d 25, cert. granted, 231 Conn. 937, 650 A.2d 174 (1994); see State v. Mitchell, supra, 204 Conn. at 201, 527 A.2d 1168.

In the present case, the defendant was brought to be viewed by the victim after the victim was told by the police that "we caught the person, we're going to have you identify him." This could possibly have led the victim to conclude that the police believed the suspect to be the robber. See State v. Tatum, 219 Conn. 721, 727, 595 A.2d 322 (1991). Thus, we disagree with the trial court that the initial identification procedure was not impermissibly suggestive.

The next inquiry under the two-pronged approach is whether the identification, in the context of the totality of the circumstances, was nevertheless reliable. "In determining whether an identification is reliable in the totality of circumstances, the corruptive influence of the suggestive procedure is weighed against the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation and the time between the crime and the confrontation." (Internal quotation marks omitted.) State v. Pollitt, 205 Conn. 132, 164, 531 A.2d 125 (1987). This inquiry is fact-bound, made on an ad hoc basis, and the court's decision is not to be reversed unless there is clear and manifest error. State v. King, supra, 35 Conn.App. 781, ...