State v. St. Onge

• Decision Date: 18 October 1978
• Parties: STATE of Maine v. Ronald ST. ONGE.
• Court: Maine Supreme Court

Page 47

392 A.2d 47

STATE of Maine v. Ronald ST. ONGE.

Supreme Judicial Court of Maine.

Oct. 18, 1978.

Michael D. Seitzinger, Asst. Atty. Gen. (orally), Augusta, Frank F. Harding, Dist. Atty., Rockland, for plaintiff.

Edward B. Miller (orally), Rockland, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

NICHOLS, Justice.

The Defendant, Ronald St. Onge, was found guilty by a Superior Court jury in Knox County of robbery, ¹ and has appealed from the judgment of conviction to this Court.

We deny the appeal.

Again we are confronted by a challenge to pre-trial and in-court identifications. Here our task is not to develop rules of law; rather, it is the formidable task of applying rules of law already enunciated to the unique facts of this case.

During the evening of March 14, 1977, James Jenkins and his wife attended the Owl's Head town meeting. Driving home at approximately 9:25 P.M., they noticed, but paid little attention to, an individual walking along the road about two hundred yards from their house. Reaching home, Jenkins pulled into the driveway and waited in the automobile to drive the babysitter home, while Mrs. Jenkins went inside their house. A few minutes later, as Jenkins and the babysitter backed out of the driveway, the headlights of his automobile fell briefly upon the same individual who had previously been observed. Now, however, the individual was standing behind a tree on Jenkins' property, holding a rifle, and with a bandanna covering his nose and mouth. Jenkins drove back into the driveway. Emerging from his automobile, he was confronted by the masked man who had in the meantime run across the front lawn to a point four or five feet from Jenkins. With a rifle pointed at his midsection, Jenkins indicated that he didn't have any money. After the masked man informed him that he was deadly serious and threatened to blow his head off, Jenkins "cooperated" by giving the robber a ten dollar bill. A brief dialogue between the two revealed that Jenkins' assailant had a very distinctive voice which was both soft and stuttering. Ordered by the masked man to "get in the car and get out of here," Jenkins drove to a neighbor's house and called the police, who arrived shortly thereafter.

Jenkins described the masked man to the police as a teenager, between 5' 6 and 5' 10 tall, very heavyset, having dark hair and dark eyes, and who spoke with a soft or low, stuttering voice. He also gave the police a description of his assailant's clothing.

A day or two later, the police showed Jenkins a photograph of the Defendant. After observing the photograph, while a card was held over the nose and mouth to simulate a mask, Jenkins stated that the photograph matched the physical appearance of his assailant but that, without hearing the suspect's voice, he could not make a positive identification under oath.

Thereafter, the sheriff informed the Defendant that he was a suspect in the case and that Jenkins thought he could identify the voice of the person who robbed him. The Defendant agreed to talk to the sheriff in Jenkins' presence. Later that week Jenkins stood behind a partition in the sheriff's office and listened to the Defendant converse with the sheriff. After hearing the voice, and observing him when he left the office, Jenkins identified the Defendant as his assailant.

At the outset of the jury trial the Superior Court held a Boyd hearing, State v. Boyd, Me., 294 A.2d 459 (1972), to determine first, whether the pre-trial identification was so suggestive as to be inherently unreliable, and second, if it was, whether the in-court identification had an independent basis, State v. Broucher, Me., 388 A.2d 907 (1978). After receiving extensive testimony, the presiding justice, relying upon a "totality of the circumstances" test and citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), ruled that notwithstanding the suggestivity of the pre-trial identifications, Jenkins' out-of-court identification of the Defendant as the person who robbed him was reliable. As the trial ensued, over the Defendant's objection, Jenkins testified as to the out-of-court identification and then in court identified the Defendant as his assailant.

While the presiding justice had ruled upon the legality of the out-of-court identification, it must be noted that when it came to the in-court identification, his ruling did not include on-the-record findings as to whether there was an independent basis for the in-court identification. On more than one occasion this Court has stressed that, in the interest of judicial economy, such findings should be put on the record, whether evidence of the pre-trial identification is found admissible or inadmissible. State v. Boyd, supra; State v. Caplan, Me., 353 A.2d 172, 175 n. 5 (1976).

Even with such a finding lacking in the record before us, we find it unnecessary to undertake that inquiry ourselves because we agree with the presiding justice's ultimate conclusion that the out-of-court identification was not impermissibly tainted. As such, the in-court identification is Per se lawful. See State v. Caplan, supra; State v. Boucher, Me., 376 A.2d 478 (1977).

The admissibility of an out-of-court identification turns upon two factors: 1) whether the police used an unnecessarily suggestive procedure in obtaining an out-of-court identification and, if so, 2) whether under all the circumstances that suggestive procedure gave rise to a substantial likelihood of misidentification. State v. Boucher, supra. Otherwise stated, such admissibility depends upon weighing the corrupting influence of the suggestive police procedures against the indicia of an accurate identification. Manson v. Brathwaite, supra; see State v. York, Me., 324 A.2d 758, 767 (1974).

The State concedes that in this case the procedures surrounding the out-of-court identification were unnecessarily suggestive. Jenkins was not shown a photograph of anyone but the Defendant. Moreover, the photograph was a "mug shot," although it does appear that the police attempted to conceal the Defendant's identification number and other similar data. Equally damaging was the fact that Jenkins was informed that the subject of the photograph had previously been imprisoned on burglary charges, had a speech impediment, and was "a good suspect."

In State v. Levesque, Me., 281 A.2d 570 (1971) we were critical of photographic identification procedures far less suggestive than the ones involved in the instant case. As the U.S. Supreme Court admonished in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the danger of photographic misidentification is at its greatest when:

the police display to the witness only the picture of a single individual who generally resembles the person he saw . . . . (and) is also heightened if the police indicate to the witness that they have other evidence that . . . the perso(n) pictured committed the crime. Id. at 383, 88 S.Ct. at 971.

Although we have recognized that the use of photographs can be an invaluable tool in identifying persons suspected of criminal activity, State v. Levesque, supra, we perceive no reason why the police did not neutrally display an array of photographs "fairly representative of people who might fit the defendant's general description." State v. Chapman, Me., 358 A.2d 387, 392 (1976).

Our criticism of the police procedures surrounding the showing of the photograph to Jenkins extends equally to the "showup" of the Defendant at the sheriff's office. One-man showups are inherently suggestive in nature. State v. Rowe, Me., 314 A.2d 407 (1974). This suggestivity was increased because Jenkins was told that the suspect he would be hearing was the...