State v. Theriault

• Decision Date: 25 November 1980
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Norman A. THERIAULT.

Page 432

438 A.2d 432

182 Conn. 366

STATE of Connecticut v. Norman A. THERIAULT.

Supreme Court of Connecticut.

Argued Oct. 8, 1980.

Decided Nov. 25, 1980.

Bruce A. Sturman, Asst. Public Defender, with whom, on the brief, was Jerrold H. Barnett, Public Defender, for appellant (defendant).

C. Robert Satti, State's Atty., with whom, on the brief, was Michael G. Durham, law student intern, for appellee (state).

Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.

ARTHUR H. HEALEY, Associate Justice.

Upon a trial to the jury, under a four count information, the defendant, Norman A. Theriault, was found guilty as charged of the crimes of robbery in the first degree, unlawful restraint in the first degree, burglary in the first degree, and possession of burglary tools in violation of §§ 53a-134(a)(2), 53a-95, 53a-101(a) and 53a-106(a) of the General Statutes, respectively. He took the present appeal from the judgment, pressing as claims of error that the court erred in refusing to suppress identification testimony and that the court's jury instruction either impermissibly shifted the burden of proof to the defendant to disprove his mental state or relieved the state of the necessity of proving the defendant's mental state, in violation of his due process rights.

This case arose out of events that occurred on May 2, 1975; certain background facts are not substantially in dispute. About 4:30 a.m. Trooper Joseph Brooks of the Connecticut State Police came upon a 1968 gold Ford Mustang pulled off to the side of the road near the entrance to the Connecticut Correctional Institution (hereinafter State Farm) in Niantic. Stopping to investigate, Brooks determined that the Mustang was unoccupied and locked, but that the engine was warm. Because he did not find anyone near the car and it did not appear that the car had been stolen or involved in an accident, Brooks recorded its registration number and proceeded on his normal rounds.

At about that same time two white males wearing stocking masks burst into one of the rooms in the administration building of the State Farm and confronted Anna Monk, the switchboard operator. Her screams alerted Raymond Davis, a guard who was in another room, who ran down the hallway to the room where Monk was located. The taller of the two intruders was armed with a revolver; the other held a wrench. Monk and Davis were ordered to lie face down on the floor where they were tied up and gagged. The process of tying up Monk and Davis took about fifteen minutes. The man with the revolver took Davis' wallet from his pocket and removed $81. The man with the wrench, later identified as the defendant, looked through Monk's pocketbook, but did not take anything. While both Monk and Davis lay on the floor, they heard banging and pounding down the hallway. After a time the man with the revolver left and everything became quiet.

Davis then untied himself, grabbed the long wrench which had been left in the room, and went down the hallway. In the room at the end of the hallway, he observed that the State Farm safe had been turned over on its side and broken into. He also noticed that a window in the room had been knocked out. He called the state police, and then untied Monk. The police arrived immediately. Monk and Davis informed the police that they had been robbed by two masked males, one of whom had a silver plated revolver and the other a large wrench. While at the State Farm, Monk and Davis also briefly described the two men. After receiving this description, a police dispatcher transmitted this preliminary information which described the intruders as two white males, one over six feet tall, thin with straggly blond hair and the other being five feet seven to five feet eight, with a stocky build and short dark hair.

Meanwhile, a check was made of the registration of the gold Mustang which was observed earlier by Trooper Brooks and which was gone after the robbery took place. That check disclosed that that vehicle belonged to Edward Vesneski, Sr., of Milford. As a result of this information, a police surveillance was set up on I-95 for the vehicle. Soon thereafter, police stopped the described vehicle in New Haven after it had been observed going through the Branford toll on I-95 at about 6 a.m. On approaching the Mustang, a trooper observed a silver plated revolver on the floor between the legs of the front seat passenger. The three occupants of the car, later identified as Norman Theriault, Leonard Vesneski and Edward Vigliotto, were removed from the car, handcuffed and arrested for the robbery at the State Farm and for possession of a weapon in a motor vehicle. A search of the car revealed a ski mask, a hat and a blue duffel bag which contained a small metal strongbox. The prisoners were then taken to the state police barracks at Montville arriving there sometime between 8 a.m. and 8:30 a.m.

Earlier that morning, at about 7 a.m., Monk and Davis had been taken to the Montville barracks to be interviewed. Monk described one of the robbers, later identified as the defendant, as being a white male around twenty years old, with brown hair, about five feet nine inches tall, and about 160 to 165 pounds; both shorter and heavier than the other robber. While Monk was being interviewed by a detective a trooper came into the room and said that the Bethany troopers had apprehended somebody. When Monk finished making her statement, she went into another room while Davis was interviewed. After both she and Davis had been interviewed, another trooper came into the room where they were sitting and asked Monk to describe the gun used in the robbery. After she did this, she was shown a silver revolver and asked if it looked familiar. Apparently at the same time she was also asked for what purposes a blue duffel bag and manila envelopes were used at the State Farm.

Thereafter, Monk was brought by the detective who interviewed her into a room with a one-way mirror. An armed trooper brought the prisoner Edward Vigliotto, who was handcuffed, ¹ into the room on the other side of the one-way mirror. Monk stated she had never seen him before. ² After Vigliotto was removed, the defendant, who was also handcuffed was brought into the same room. Monk identified him as the shorter robber who had held the wrench over her head and as one of the two intruders who had tied her up. After the defendant was removed from the room, Vesneski, also handcuffed, was brought into the room. Monk identified him as the taller robber who was armed with the revolver. The same procedure was repeated for Davis. He identified the defendant and Vesneski as involved in the State Farm incident earlier that morning. He also recognized the third prisoner, Vigliotto, not because he saw him in the perpetration of the crimes earlier that morning, but because Vigliotto had just finished serving a term of incarceration at the State Farm.

Before trial, the trial court held a hearing on the defendant's motion to suppress the out-of-court identifications made of the defendant at the Montville police barracks. The court denied the motion. The evidence at the trial included that elicited during the suppression hearing. Both Monk and Davis testified and made in-court identifications of the defendant.

We turn to the defendant's claim that the court erred in refusing to suppress the identification testimony in that the show-up at the police barracks violated his due process rights because it was impermissibly suggestive and gave rise to a substantial likelihood of irreparable misidentification. 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 impermissibly suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the "totality of the circumstances." See State v. Gold, 180 Conn. 619, 657-58, 431 A.2d 501 (1980), cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980); State v. Piskorski, 177 Conn. 677, 741, 419 A.2d 866 (1979); State v. Willin, 177 Conn. 248, 251, 413 A.2d 829 (1979); State v. Smith, 165 Conn. 680, 684, 345 A.2d 41 (1974); see also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

Applying the test thus prescribed, we must first determine whether the identification procedure used by the police at the show-up ³ at the police barracks was unnecessarily suggestive. Although one man confrontations do not per se constitute a denial of due process; Neil v. Biggers, supra; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); State v. Middleton, 170 Conn. 601, 606, 368 A.2d 66 (1976); State v. Carnegie, 158 Conn. 264, 269, 259 A.2d 628, cert. denied, 396 U.S. 992, 90 S.Ct. 488, 24 L.Ed.2d 455 (1969); this court has stated that "(w)ithout question, almost any one-to-one confrontation between a victim of crime and a person whom the police present to him as a suspect must convey the message that the police have reason to believe him guilty ...." State v. Middleton, supra, 170 Conn. 608, 368 A.2d 66, quoting with approval United States ex rel. Kirby v. Sturges, 510 F.2d 397, 403 (7th Cir. 1975); see State v. Willin, supra, 177 Conn. 251, 413 A.2d 829. On the basis of the circumstances of this case, the show-up identification procedure used was unnecessarily suggestive. While Monk was being interviewed, a trooper came into the room and said the Bethany troopers had apprehended somebody. When Monk and Davis were in a room after both had been interviewed, a trooper asked her to describe the gun used in the robbery. She did, he showed her a gun and asked her...