State v. Ramsundar

Citation526 A.2d 1311,204 Conn. 4
Decision Date09 June 1987
Docket NumberNo. 12843,12843
PartiesSTATE of Connecticut v. Daniel A. RAMSUNDAR.
CourtSupreme Court of Connecticut

Joseph P. Secola, Milford, for appellant (defendant).

Steven M. Sellers, Asst. State's Atty., Hartford, with whom, on the brief, was Kevin P. McMahon, Asst. State's Atty., for appellee (state).

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

CALLAHAN, Associate Justice.

The defendant was charged in an information with having committed the crime of arson in the first degree in violation of General Statutes § 53a-111. 1 He pleaded not guilty and elected a jury trial. He was found guilty as charged by the jury and was subsequently sentenced by the trial court to a term of ten years imprisonment. The defendant has appealed claiming that the trial court erred by: (1) failing to suppress both in-court and out-of-court identifications; (2) admitting into evidence his prior misconduct, his conviction for harassment 2 and his violation of probation; and (3) commenting unfairly on the evidence in its instructions to the jury. We find no error.

The jury could reasonably have found the following facts: On October 17, 1984, at approximately 11 p.m., brothers Steve and Kenneth Dacunha noticed a fire in the rear yard at 41 Woodmere Road in West Hartford, across the street from Kenneth's home. The two men ran to the scene and observed flames about two feet in height, confined to a strip of ground approximately 18 inches wide and 20 to 30 feet in length. Kenneth smothered the flames with his jacket and called the West Hartford fire department. While awaiting the arrival of the firemen, the two inspected the area of the blaze by flashlight. They smelled an odor of gasoline and saw a strip of liquid extending from a burned area of ground across the driveway to an exterior wooden porch at the rear of the house. They also observed that the rear porch was totally saturated with gasoline.

Shortly thereafter, police and fire officials arrived at the scene. They roused the occupants of the house, Olive Crompton and her daughter, Denise, and conducted an investigation. Deputy Chief Matteo Pascarelli of the fire department suspected arson. He testified that he had observed a "trailer" 3 of gasoline extending across the driveway to the back porch and that the back porch was "pretty well covered" with gasoline. He opined that had the fire reached the back porch it would have ignited the house and developed into a "major working fire" within ten minutes. He also testified that if the fire had reached the house it would have blocked access from the second floor to the first floor and prevented escape by way of the rear door. Deputy Chief Fire Marshall Richard Kane confirmed the fact that the fire had been deliberately set.

The occupants of the house, the Cromptons, were tenants. The house was owned by Ms. Lee Rice and was for sale. Prior to renting the house to the Cromptons, Rice, who had been romantically involved with the defendant since 1980, had lived there with him for approximately one year. The defendant was familiar with the house and had made various repairs to it, including repairs to the rear porch. After Rice had rented the house to the Cromptons, she and the defendant had moved to Rowe Avenue in Hartford where they continued to live together until early in 1984.

On February 12, 1984, Rice terminated her relationship with the defendant because he had misappropriated $609 of her money, which she had earmarked for a mortgage payment on her West Hartford house. The defendant, who was upset and angry that Rice had ended their affair, moved out of the Rowe Avenue house the next day. Thereafter, the defendant harassed Rice in a misguided effort to revive their romantic relationship. On October 18, 1984, the day following the fire the defendant telephoned Rice and, laughing, said, "try and sell that house now."

As a result of an investigation, during which the defendant was identified as having purchased gasoline in a container at a Hartford gasoline service station on the night of either October 16 or 17, 1984, he was arrested and charged with arson in the first degree.

I

The defendant first claims that the trial court erred by failing to suppress both in-court and out-of-court identifications by two witnesses, Patricia Parrott and Tammey Arnett. He contends that their identifications of him resulted from an unnecessarily suggestive procedure and were unreliable, and that the admission of their testimony violated his federal and state constitutional rights to due process. 4 We disagree.

The following testimony was elicited relating to the issue of the identification of the defendant by Parrott and Arnett: In October, 1984, Parrott was employed as a cashier at the self-service island of an Exxon service station located at the corner of Park Street and Prospect Avenue in Hartford. Arnett was a friend of Parrott's, often visiting Parrott and keeping her company in the cashier's booth during the evening hours. On October 23, 1984, while conducting a canvass of area service stations in connection with the investigation of the fire at 41 Woodmere Road, Detective Joseph Benequisto of the West Hartford police department interviewed Parrott and Arnett. During the course of the interview, he showed them a single police "mug shot" which was a front and side view of the defendant. He then inquired whether the man depicted in the police photograph had purchased gasoline in a container at the station during the previous week. At that time neither Parrott nor Arnett was able to identify the person shown in the photograph.

Two days later, however, on October 25, 1984, when the defendant drove into the same Exxon station to purchase gasoline for his automobile, both Parrott and Arnett immediately recognized him as the man who had purchased gasoline in a container late in the evening on either October 16 or 17, 1984. Parrott and Arnett both testified that when they saw the defendant the second time, they recognized and remembered him because of his distinctive appearance. 5 As the defendant left the service station on October 25, 1984, Parrott wrote down the number of the temporary registration marker on his automobile and called the West Hartford police.

Later Parrott and Arnett gave statements to the police identifying the driver of the automobile on October 25, 1984, as the same man who had purchased gasoline in a container at the Exxon station the previous week. Subsequently, at trial, both Parrott and Arnett positively identified the defendant as the driver of the automobile on October 25, 1984, and as the person who had purchased gasoline in a container on October 16 or 17, 1984.

"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.' " State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); State v. Cubano, 203 Conn. 81, 93, 523 A.2d 495 (1987); State v. Collette, 199 Conn. 308, 310, 507 A.2d 99 (1986); State v. Hinton, 196 Conn. 289, 292-93, 493 A.2d 837 (1985).

In this case, the trial court found that the display of a single photograph of the defendant by Benequisto, coupled with his inquiry, was unnecessarily suggestive. See State v. Evans, 200 Conn. 350, 355-56, 511 A.2d 1006 (1986); State v. Collette, supra. The state does not, on appeal, dispute that finding. We must, therefore, consider whether, based on an examination of the "totality of the circumstances," the identifications were nevertheless reliable. State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985).

The factors to be considered in determining the reliability of an identification subsequent to a suggestive identification procedure "include 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. Against these factors is to be weighed the corrupting effect of the suggestive identification itself." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); State v. Cubano, supra, 203 Conn. at 95, 523 A.2d 495; State v. Collette, supra, 199 Conn. at 311 n. 3, 507 A.2d 99; State v. Hinton, supra, 196 Conn. at 295-96, 493 A.2d 837.

Since neither Parrott nor Arnett was a victim of the arson in question or a witness to its actual occurrence, an analysis of the circumstances of their identifications of the defendant does not fit neatly into the Manson matrix of factors normally considered in determining reliability. The factors considered in Manson, however, are not required to be present seriatim for an identification to be found reliable. United States v. Merkt, 794 F.2d 950, 958 (5th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987); United States v. Woolery, 740 F.2d 359, 360-61 (5th Cir.1984), cert. denied, 469 U.S. 1208, 105 S.Ct. 1172, 84 L.Ed.2d 322 (1985). We must examine the circumstances that did exist and determine on the whole whether any suggestiveness in the identification procedure created a very substantial risk of misidentification. United States v. Merkt, supra; United States v. Woolery, supra; State v. Fullwood, 193 Conn. 238, 245, 476 A.2d 550 (1984).

In this instance we think that it did not. Although neither Parrott nor Arnett recognized the person in the photograph when it was displayed to them by Detective Benquisto on October 23, 1984, both indicated, at that time, that the subject of the...

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