State v. Tatum

• Decision Date: 30 July 1991
• Docket Number: No. 13999,13999
• Citation: 595 A.2d 322,219 Conn. 721
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Edgar Peter TATUM.

Page 322

595 A.2d 322

219 Conn. 721

STATE of Connecticut v. Edgar Peter TATUM.

No. 13999.

Supreme Court of Connecticut.

Argued April 25, 1991.

Decided July 30, 1991.

Alicia B. Davenport and Steven M. Barry, Sp. Public Defenders, with whom, on the brief, was Sally S. King, Hartford, for appellant (defendant).

Susann E. Gill, Asst. State's Atty., with whom, on the brief, were John A. Connelly, State's Atty., and Marcel A. Bryar, Law Student Intern, for appellee (State).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and COVELLO, JJ.

SHEA, Associate Justice.

The defendant, Edgar Tatum, was charged in an information with one count of murder in violation of General Statutes § 53a-54a ¹ and one count of assault in the second degree in violation of General Statutes § 53a-60(a)(2). ² At trial, the jury returned a guilty verdict on the murder charge, but failed to return a verdict on the assault charge. ³ The defendant was subsequently sentenced to a term of sixty years for the murder conviction. He appeals from that conviction, claiming that the trial court improperly: (1) allowed the admission of an in-court identification of the defendant after an unnecessarily suggestive pretrial identification procedure had been conducted; (2) instructed the jury on the issue of identification; (3) refused to instruct the jury on the substantive use of certain prior inconsistent statements; and (4) failed to conduct the trial in a fair and impartial manner. We affirm the judgment.

From the evidence presented the jury could reasonably have found the following facts. At approximately 10:30 p.m. on February 25, 1988, Larry Parrett was shot and killed in his home in Waterbury, where he lived with his girlfriend, Tracy LeVasseur. Anthony Lombardo, who lived on the same street, was also shot and wounded at the same time and place. Earlier that evening, Lombardo had been out walking his dog when he noticed a tall black man, later identified as the defendant, knocking on the door of Parrett's apartment. Lombardo approached the defendant, after having recognized him as someone he had seen at the apartment on other occasions. When LeVasseur opened the door from within, the defendant forced himself and Lombardo into the living room, where LeVasseur and Parrett were smoking cocaine. LeVasseur recognized the defendant as "Ron Jackson," ⁴ a man from California who, along with other visitors from California, had spent a number of nights at the apartment selling drugs during the months preceding the incident. Parrett also had been involved in the sale of drugs. When the defendant and Parrett began to argue, Lombardo and LeVasseur left the room and went into the kitchen, where three other men were present. A few moments later, Lombardo returned to the living room to find the defendant pointing a gun at Parrett. Lombardo stepped between the two men, thinking that the defendant might be dissuaded from firing. The defendant nevertheless fired four shots from the gun, striking Lombardo in the shoulder and fatally wounding Parrett.

That night at the Waterbury police station Lombardo was shown a photographic array from which he chose a photograph of a black man named Jay Frazer as that of the man who had shot him and Parrett. ⁵ The same night LeVasseur also selected a photograph of Frazer from an array shown to her by the police. Neither array contained a photograph of the defendant. One week later, however, LeVasseur went to the Waterbury police and told them that she had identified the wrong man. ⁶ A nine person lineup was then conducted in which Frazer participated but the defendant did not. After seeing Frazer in person, LeVasseur told the police that he was definitely not the assailant. Thereafter, the police showed another photographic array to LeVasseur from which she chose the defendant's photograph as that of the person who had shot the victim. Lombardo was subsequently shown a photographic array that included the defendant's picture, but he declined to identify anyone, explaining that he preferred to see the individuals in person. ⁷ At the probable cause hearing and at trial, both Lombardo and LeVasseur identified the defendant as the man who had shot Lombardo and Parrett.

I

The defendant first claims that the trial court deprived him of his due process rights under the fourteenth amendment to the United States constitution when it admitted Lombardo's in court ⁸ identification of him which, he argues, was tainted by an unnecessarily suggestive pretrial identification procedure in that Lombardo had viewed the defendant at the probable cause hearing. ⁹ The defendant argues that the fact that he was the only black man seated at the defense table "conveyed a clear message to Lombardo that [the prosecution] believed Edgar Tatum was the man who had shot him." He claims that Lombardo's subsequent identification of him at trial was the product of that unnecessarily suggestive procedure rather than the product of his independent recollection of the crime.

We note at the outset that the defendant failed to raise this claim in the trial court either by way of an objection to the procedure used at the probable cause hearing or a motion to suppress Lombardo's identification at trial. The defendant concedes that the claim was not preserved at trial, and therefore seeks appellate review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In State v. Golding, we held that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) Id., at 239-40, 567 A.2d 823. The record in this case, albeit scant due to the fact that no suppression hearing was held, is adequate for us to review the claim. The defendant's claim that an unnecessarily suggestive pretrial identification procedure tainted a subsequent identification made at trial is one of constitutional magnitude. ¹⁰ Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The third condition of State v. Golding, however, has not been met because the defendant has failed to establish that Lombardo's pretrial identification of him was the result of an unconstitutional procedure, the necessary predicate for exclusion of Lombardo's subsequent in court identification.

An in court identification must be excluded, as violative of due process, only if it is the product of an unconstitutional pretrial identification procedure. State v. Smith, 200 Conn. 465, 469-70, 512 A.2d 189 (1986); United States v. Domina, 784 F.2d 1361, 1368 (9th Cir.1986). In determining whether a pretrial identification procedure violated 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 have been 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, 371-372, 438 A.2d 432 (1980). Because we conclude that in this case the procedure complained of was not unnecessarily suggestive, we need not reach the second question of the identification's independent reliability. ¹¹

We have recognized that generally a one-to-one confrontation between a victim and the suspect presented to him for identification is " 'inherently and significantly suggestive' " because it conveys the message to the victim that the police believe the suspect is guilty. 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); State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976). We agree with the defendant, as does the state, that the setting of the probable cause hearing was inherently suggestive. The fact that the defendant was conspicuously seated beside his lawyer at the defense table when Lombardo was asked to identify his assailant was as suggestive a scenario as an out-of-court single person showup or a first-time identification of a defendant at trial, where he is also conspicuously seated beside his lawyer at the defense table. ¹² Our recognition that the probable cause hearing was suggestive does not, however, end our inquiry. We must next consider whether it was unnecessarily or impermissibly so.

The defendant argues that the suggestive confrontation was unnecessary and a violation of his due process rights because the prosecution could have conducted a lineup or placed him among the courtroom spectators rather than allow him to sit at the defense table beside his lawyer. With this contention we do not agree. In order to try the defendant, it was necessary for the prosecution to present evidence at the preliminary hearing to establish probable cause to believe that he had committed the crimes charged. Conn. Const., art. I, § 8, as amended; ¹³ General Statutes § 54-46a. ¹⁴ At that hearing, the prosecution was thus entitled to elicit Lombardo's testimony on the issue of identification through the usual mode of putting him on the witness stand and asking him to identify his assailant if his assailant was present in the courtroom. The fact that the prosecution might have taken extraordinary steps to lessen the suggestiveness of the confrontation by using some other identification procedure does not render the routine procedure that was used unnecessary or impermissible. The defendant had no constitutional right to a lineup; State v. Vaughn, ...