State v. Smith

CourtSupreme Court of Connecticut
Writing for the CourtBefore PETERS; CALLAHAN
Citation200 Conn. 465,512 A.2d 189
PartiesSTATE of Connecticut v. Patrick D. SMITH.
Decision Date15 July 1986

Page 189

512 A.2d 189
200 Conn. 465
STATE of Connecticut
v.
Patrick D. SMITH.
Supreme Court of Connecticut.
Argued March 12, 1986.
Decided July 15, 1986.

Page 191

Suzanne Zitser, Asst. Public Defender, with whom, on brief, was Joette Katz, Public Defender, for appellant (defendant).

James G. Clark, Deputy Asst. State's Atty., with whom, on brief, was John Redway, for appellee (state).

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

[200 Conn. 466] CALLAHAN, Associate Justice.

The defendant was charged in an information with robbery in the first degree in violation of General Statutes (Rev. to 1979) § 53a-134 1 and sexual assault in the first degree in violation of General Statutes (Rev. to 1979) § 53a-70. 2 The charges arose out of the robbery and sexual assault of the part owner and general manager of a health foods store in Middletown at about 6:30 p.m. on February 8, 1980. The defendant was tried by a jury and found guilty of both counts of the information. The trial court sentenced him to consecutive terms of not less than ten years nor more than twenty years on each count for a total effective sentence of not less than twenty years nor more than forty years.

The defendant has appealed claiming that the trial court erred: (1) by allowing an unnecessarily suggestive in-court identification procedure; (2) by denying [200 Conn. 467] the defendant a continuance during the trial; and (3) by failing to suppress the defendant's confession. We find no error.

The defendant does not dispute the sufficiency of the evidence to sustain his conviction. A brief recitation of the facts concerning the incident which the jury could reasonably have found, however, is necessary to place his claims in proper perspective. The victim was alone in her store when a partially masked white male entered, brandishing a large knife. Once inside the store he forced the victim down behind the counter and demanded the contents of the cash register and her pocketbook. He then took her outside, around the corner of the building where he made her remove her slacks and underwear and sexually molested her. After a period of time, having been frightened by a car pulling into a nearby parking area, he released the victim and fled. The Middletown police were called to the scene and the victim

Page 192

subsequently went to Middletown police headquarters where she gave a statement as to what had transpired.
I

The defendant's first claim is that he was denied due process of law because the trial court allowed an unnecessarily suggestive and unreliable in-court identification procedure.

On the evening of the robbery, the victim gave the police a description of her assailant which was somewhat limited because his face was partially covered during the incident. On February 26, 1980, however, she selected the defendant's picture from an array containing six photographs. At that time she "felt" she recognized the defendant as her assailant because of his eyes, his eyebrows and the shape of his head. She was, however, not certain of her identification. The defendant [200 Conn. 468] makes no claim that the photographic identification procedure at which the victim selected his picture was unnecessarily suggestive.

At trial, on direct examination, after the victim had testified concerning her selection of the defendant's photograph from the array, the state's attorney asked her if she would now be able to recognize her assailant. She replied that she would. The state's attorney then requested that the defendant stand, approach the witness and speak. Defense counsel objected to this procedure. The trial court overruled the objection and required the defendant to walk to the area of the witness stand and to recite his name, address and the alphabet.

The defendant contends that the procedure employed was unnecessarily suggestive, was conducive to misidentification, and deprived him of due process of law, despite the absence of an unnecessarily suggestive out-of-court pretrial identification procedure. The defendant does not claim that all in-court identification procedures are unnecessarily suggestive. Particularly, he does not claim that what he characterizes as the "customary" identification of an accused seated at counsel table is unnecessarily suggestive. He also conceded during argument in the trial court that he could be required to stand to be identified. The defendant argues rather that the circumstances of this in-court identification, wherein he was required to appraoch the victim and speak, were unnecessarily suggestive and conducive to misidentification.

We fail to see how the identification procedure employed in this case has a greater tendency to suggestiveness than the identification of an accused seated or standing at counsel table. Any one-on-one in-court identification of an accused conveys the message that the state has arrested and placed on trial a person it [200 Conn. 469] believes has committed the crime. Baker v. Hocker, 496 F.2d 615, 617 (9th Cir.1974). That is the factor that creates the element of suggestiveness, not the extra steps taken here to allow the victim to observe the defendant thoroughly before identifying him.

The United States Supreme Court has set standards as to when a pretrial identification must be excluded and under what circumstances an in-court identification that follows an impermissible pretrial identification must be excluded. See Neil v. Biggers, 409 U.S. 188, 200-201, 93 S.Ct. 375, 382-383, 34 L.Ed.2d 401 (1972); Coleman v. Alabama, 399 U.S. 1, 5-6, 90 S.Ct. 1999, 2002-2002, 26 L.Ed.2d 387 (1970); Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967); Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 1956, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149 (1967). The Court, however, has not set any guidelines for in-court identification procedures or indicated that in-court identifications must be made in a way that is not suggestive. United States v. Domina, 784 F.2d 1361, 1368 (9th Cir.1986). Generally, an

Page 193

in-court testimonial identification need be excluded, as violative of due process, only when it is tainted by an out-of-court identification procedure which is unnecessarily suggestive and conducive to irreparable misidentification. United States v. Domina, supra, 1368; State v. Nelson, 4 Conn.App. 514, 516, 495 A.2d 298 (1985); Fortune v. State, 549 P.2d 380, 383 (Okla.Crim.App.1976). "The Supreme Court has not extended its exclusionary rule to in-court identification procedures that are suggestive because of the trial setting." United States v. Domina, supra, 1369. "There is no constitutional requirement that an in-court identification confrontation[200 Conn. 470] be conducted as a lineup or be otherwise free of suggestion. An in-court testimonial identification must be excluded if it is the product of an out-of-court confrontation arranged by the state, which was unnecessarily suggestive and conducive to irreparable misidentification." Commonwealth v. Wheeler, 3 Mass.App. 387, 391, 331 N.E.2d 815 (1975). "[W]ithout more, the mere exposure of the accused to a witness in the suggestive setting of a criminal trial does not amount to the sort of impermissible confrontation with which the due process clause is concerned." (Citations omitted.) Middletown v. United States, 401 A.2d 109, 132 (D.C.App.1979).

"We know of no authority which would prohibit, as unduly suggestive, an exclusively in-court identification. Mangrum v. State, 155 Ga.App. 334, 335, 270 S.E.2d 874 (1980)." State v. Nelson, supra, 4 Conn.App. 516, 495 A.2d 298. The defendant's protection against the obvious suggestiveness in any courtroom identification confrontation is his right to cross-examination. Laury v. State, 260 A.2d 907, 909 (Del.1969); State v. Drew, 360 So.2d 500, 516 (La.1978); Cooper v. State, 599 P.2d 419, 422 (Okla.Crim.App.1979); see Manson v. Brathwaite, 432 U.S. 98, 113 n. 14, 97 S.Ct. 2243, 2252 n. 14, 53 L.Ed.2d 140 (1977). The innate weakness in any in-court testimonial identification is grounds for assailing its weight rather than its admissibility. In re W.K., 323 A.2d 442, 444 (D.C.App.1974).

The manner in which in-court identifications are conducted is not of constitutional magnitude but rests within the sound discretion of the trial court. United States v. Satterfield, 572 F.2d 687, 690 (9th Cir.1978); United States v. Williams, 436 F.2d 1166, 1168 (9th Cir.1970); United States v. King, 433 F.2d 937, 938 (9th Cir.1970); People v. Powell, 105 App.Div.2d 712, 714, 481 N.Y.S.2d 157 (1984); see United States v. Williams, 704 F.2d 315, 319 (6th Cir.1983). In requiring[200 Conn. 471] the defendant to approach the witness stand and speak, the trial court enabled the jury to evaluate for itself the certainty of the victim's identification. See State v. Jonas, 169 Conn. 566, 576-77, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S.Ct. 1132, 47 L.Ed.2d 331 (1976). The defendant's voice and appearance were probative evidence and the trial court did not abuse its discretion or violate the defendant's due process rights in granting the state's request.

II

The defendant next claims that the trial court erred by refusing to grant his request for a continuance in order to arrange a less suggestive in-court identification procedure. The short answer to the defendant's claim is that the record does not disclose that such a request was ever made. The record does reveal that the defendant objected to the identification procedure. His principal concern, however, was whether being required to speak was a violation of his fifth amendment rights and whether the state had followed proper procedures for obtaining...

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85 practice notes
  • State v. Breton, No. 13845
    • United States
    • Supreme Court of Connecticut
    • August 22, 1995
    ...fact-finding, such as the voluntariness of a confession; State v. Medina, 228 Conn. 281, 294, 636 A.2d 351 (1994); State v. Smith, 200 Conn. 465, 478, 512 A.2d 189 (1986); or the seizure of a defendant. State v. Greenfield, 228 Conn. 62, 68-69, 634 A.2d 879 (1993); State v. Northrop, 213 Co......
  • State v. Reddick, No. 14336
    • United States
    • Supreme Court of Connecticut
    • January 26, 1993
    ...are conducted is not of constitutional magnitude but rests within the sound discretion of the trial court." State v. Smith, 200 Conn. 465, 470, 512 A.2d 189 (1986). In such cases, the defendant's " 'protection against the obvious suggestiveness in any courtroom identification confrontation ......
  • State v. Boscarino, Nos. 12667
    • United States
    • Supreme Court of Connecticut
    • August 11, 1987
    ...We are unpersuaded. The use of an involuntary confession in a criminal trial violates due process of law. Page 1273 State v. Smith, 200 Conn. 465, 475, 512 A.2d 189 (1986); State v. Shifflett, 199 Conn. 718, 727, 508 A.2d 748 (1986). The trial court must determine the voluntariness of a con......
  • State v. Chung
    • United States
    • Supreme Court of Connecticut
    • January 13, 1987
    ...adequately supports a claim that the defendant has been deprived of a fundamental constitutional right and a fair trial. State v. Smith, 200 Conn. 465, 475, 512 A.2d 189 (1986); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). "It is well settled that the use of an involuntary confess......
  • Request a trial to view additional results
85 cases
  • State v. Breton, No. 13845
    • United States
    • Supreme Court of Connecticut
    • August 22, 1995
    ...fact-finding, such as the voluntariness of a confession; State v. Medina, 228 Conn. 281, 294, 636 A.2d 351 (1994); State v. Smith, 200 Conn. 465, 478, 512 A.2d 189 (1986); or the seizure of a defendant. State v. Greenfield, 228 Conn. 62, 68-69, 634 A.2d 879 (1993); State v. Northrop, 213 Co......
  • State v. Reddick, No. 14336
    • United States
    • Supreme Court of Connecticut
    • January 26, 1993
    ...are conducted is not of constitutional magnitude but rests within the sound discretion of the trial court." State v. Smith, 200 Conn. 465, 470, 512 A.2d 189 (1986). In such cases, the defendant's " 'protection against the obvious suggestiveness in any courtroom identification confrontation ......
  • State v. Boscarino, Nos. 12667
    • United States
    • Supreme Court of Connecticut
    • August 11, 1987
    ...We are unpersuaded. The use of an involuntary confession in a criminal trial violates due process of law. Page 1273 State v. Smith, 200 Conn. 465, 475, 512 A.2d 189 (1986); State v. Shifflett, 199 Conn. 718, 727, 508 A.2d 748 (1986). The trial court must determine the voluntariness of a con......
  • State v. Chung
    • United States
    • Supreme Court of Connecticut
    • January 13, 1987
    ...adequately supports a claim that the defendant has been deprived of a fundamental constitutional right and a fair trial. State v. Smith, 200 Conn. 465, 475, 512 A.2d 189 (1986); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). "It is well settled that the use of an involuntary confess......
  • Request a trial to view additional results

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