State v. Porraro

• Decision Date: 18 July 1979
• Docket Number: No. 78-112-C,78-112-C
• Parties: STATE v. Donald PORRARO. A.
• Court: Rhode Island Supreme Court

Page 465

404 A.2d 465

121 R.I. 882

STATE v. Donald PORRARO.

No. 78-112-C.A.

Supreme Court of Rhode Island.

July 18, 1979.

[121 R.I. 893] David Leach, Sp. Asst. Atty. Gen., for plaintiff.

John F. Cicilline, Providence, for defendant.

OPINION

DORIS, Justice.

In the early morning hours of October 4, 1975, while leaving the Gallery Lounge in Providence with his wife Deborah, Gary Charron was shot. Three months later he died from the wounds inflicted by the gunshot. The defendant, Donald Porraro, was apprehended and charged with the crime. After a jury trial in the Superior Court, the defendant was found guilty of manslaughter and possession of a firearm after a previous conviction of a crime of violence. The defendant's motion for a new trial was thereafter denied, and he was sentenced to 20 years at the Adult Correctional Institutions on the manslaughter charge and 10 years at the ACI on the firearm charge, the sentences to run consecutively. In this appeal the defendant raises numerous assignments of error, the most important ones of which concern rulings of the trial justice regarding Deborah Charron's identification of the defendant as the person who shot her husband.

I

In her direct testimony Deborah Charron stated that on the evening of the shooting, she went with her husband and several friends to the Gallery Lounge. While she was dancing, a man approached her and made an offensive remark about her cousin who was also in the lounge. She observed this person for two or three minutes at a distance of approximately three feet. Later that evening, as she was leaving the lounge with her husband, the same man approached her. She testified that he punched her in the face and then pointed a gun at her husband. As her husband began to run away, he was shot. Deborah Charron described the man who shot her husband as being 5 feet 8 or 9 inches in height, and having dark hair and a dark complexion. She stated that he was wearing a sleeveless "muscle shirt" and had tatoos on his arm. When the prosecutor asked her whether the person whom she had described was in the courtroom, defendant's counsel objected and the jury was excused. Defense counsel then stated that because Deborah Charron had made pretrial lineup and photographic identifications of defendant, he requested an evidentiary hearing outside the presence of the jury to determine whether the proffered in-court identification was tainted by any alleged illegality at the pretrial confrontations. The prosecutor assured the trial justice that the extra judicial identifications were not impermissibly suggestive in violation of constitutional standards ¹ and that he did not intend actually to introduce the out-of-court identifications. Without hearing any testimony concerning the circumstances of the lineup or photographic display, the trial justice denied defendant's request for a voir dire, stating that he was satisfied that the in-court identification was independently derived from the witness' observations at the Gallery Lounge. When the jury returned, Deborah Charron identified defendant as the person who shot her husband. The defendant asserts that he had an absolute right to a voir dire hearing on the issues of possible taint and independent source and that the trial justice's refusal to grant him such a hearing constitutes reversible error.

In Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967), the Supreme Court first declared that a pretrial lineup may be so unnecessarily suggestive and conducive to an irreparable mistaken identification as to amount to a denial of due process. In such a case the lineup identification is inadmissible in the ensuing trial. This " fairness" standard has been subsequently refined so that an unnecessarily suggestive pretrial identification is inadmissible only if it is unreliable. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977). Whether the identification procedure amounted to a denial of due process depends upon the totality of the circumstances surrounding it. See State v. Thornley,113 R.I. 189, 192, 319 A.2d 94, 96 (1974); State v. Ouimette, 110 R.I. 747, 767, 298 A.2d 124, 137 (1972).

An analogous rule applies to instances of pretrial photographic identification. In Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968), the Court stated:

"(C)onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside * * * only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."

If either the lineup or photographic identification of the defendant was obtained in contravention of the due process clause, a subsequent in-court identification is still admissible if the prosecution proves by clear and convincing evidence that it is based upon a sufficient independent recollection of the event. State v. DeMasi, R.I., 374 A.2d 806, 808 (1977); Cf. United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149, 1164 (1967). Admission of the in-court identification without first determining that it was not tainted by the illegal pretrial identification, but came instead from an independent source, is constitutional error. Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 1956, 18 L.Ed.2d 1178, 1186 (1967). The issue posed by this appeal is whether, given these settled constitutional principles, a trial justice Must conduct an evidentiary hearing outside the presence of the jury whenever a potential Stovall-Simmons problem arises during trial.

The state initially argues that, although the trial justice did not so base his decision, defendant was not entitled to a voir dire hearing because he failed to file a pretrial motion for suppression of the identification testimony. The state relies upon our opinion in State v. Maloney, 111 R.I. 133, 144, 300 A.2d 259, 265 (1973), where we held that all efforts to suppress evidence must be by pretrial motion. If Maloney applies, it is only by analogy, however, because that case was concerned with evidence allegedly obtained in violation of the fourth amendment proscription against unreasonable searches and seizures.

In the instant case defendant was cognizant of the extrajudicial identifications before the trial commenced. Therefore, this was not a case in which his request for a voir dire was prompted by a revelation during the course of the trial. While we believe it would have been more expeditious had defendant made a pretrial motion to suppress, we nevertheless believe that, in the circumstances of this case, Maloney should be restrictively applied; and accordingly we hold that defendant's request for a voir dire hearing was timely.

The state's next contention is that defendant was adequately protected by his right to cross-examine the witness concerning her out-of-court identifications. As a tactical matter, defendant chose not to pursue the issue on cross-examination. The state's argument misconstrues the import of the Wade-Gilbert-Stovall trilogy and its progeny. Prior to the Supreme Court pronouncements in 1967, identification testimony was tested, as is all evidence, through the vehicle of cross-examination. The Supreme Court determined, however, that constitutional considerations warranted the creation of exclusionary rules. As was stated in Foster v. California, 394 U.S. 440, 442 n. 2, 89 S.Ct. 1127, 1128 n. 2, 22 L.Ed.2d 402, 406 n. 2 (1969):

"The reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution's case is a matter for the jury. But it is the teaching of Wade, Gilbert, and Stovall, supra that in some cases the procedures leading to an eyewitness identification may be so defective as to make the identification constitutionally inadmissible as a matter of law."

Here, the trial justice was confronted in the first instance with a question of Admissibility, not Mere credibility. In such a case, cross-examination alone is an insufficient safeguard.

The state further argues that the decision whether to conduct a voir dire, with its consequent disruption of the trial, resides solely in the trial justice's discretion and that in this case there was no abuse of discretion. The seminal case in this area is Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968), wherein the District of Columbia Court of Appeals formulated procedural guidelines for cases in which identification problems are presented. Id. 133 U.S.App.D.C. at 34, 408 F.2d at 1237. These guidelines clearly recommend that an evidentiary hearing be conducted in a case such as this. ² We first approved of the Clemons guidelines in State v. Ragonesi, 112 R.I. 340, 344-45 n. 4, 309 A.2d 851, 853-54 n. 4 (1973). See State v. DeMasi, R.I., 374 A.2d at 808; State v. Benoit, 117 R.I. 69, 78, 363 A.2d 207, 213 (1976). The state contends, however, that Ragonesi merely suggested an optimal procedure but did not impose a mandatory obligation upon trial justices. ³

There has been considerable litigation concerning the question of under what circumstances a voir dire hearing is required on the issue of taint upon an in-court identification from allegedly illegal pretrial identifications. The cases reflect a wide divergence of opinion. At one extreme are those jurisdictions which unequivocally state that a defendant has an absolute right to an evidentiary hearing outside the jury's presence whenever an identification issue is raised. See, e. g., Moore v. Commonwealth, 569 S.W.2d 150, 153 (Ky.1978); Francis v. Commonwealth, 468 S.W.2d 287, 293 (Ky.App.1971); Perkins v. State, 11 Md.App. 527, 531, 275 A.2d 517, 520 (1971); People v. Anderson, 389 Mich. 155, 169 & n. 3, 205 N.W.2d 461, 466 & n. 4 (1973); State v. Williams, 258 S.C. 482, 485, 189...