State v. Unwin

Decision Date05 November 1980
Docket NumberNo. 344-79,344-79
Citation424 A.2d 251,139 Vt. 186
PartiesSTATE of Vermont v. Ronald D. UNWIN.
CourtVermont Supreme Court

Mark J. Keller, Chittenden County State's Atty., Burlington, and Timothy U. Martin, Law Clerk, on brief, for plaintiff.

James L. Morse, Defender Gen., William A. Nelson, Appellate Defender, and George Spangler, Montpelier, Law Clerk, on brief, for defendant.


BILLINGS, Justice.

At about 2 A.M. on January 25, 1979, three college students, including Steven Renehan and Paul Harrison, left a bar in Burlington. During the next hour or hour and a half, there were three confrontations between this group and another group of three men, which included the defendant. The two groups had not met before.

The first confrontation began when the three students accused the other three men of throwing a bottle at them. There was some shoving, but this confrontation quickly stopped when a policeman happened by. Both groups said there was no trouble, and they separated.

The second encounter occurred a short time later. This time there was a fight between one of the students and one of the other men, and the student was badly beaten. Police arrived as his friends were helping him to their car. They said they did not want to file charges, and the policemen left.

The third confrontation occurred as the students were about to get into their car. The defendant and his friends ran up and another fight broke out. During this fight Steven Renehan was stabbed in the heart, lungs and abdomen. The defendant and his friends ran. Police quickly arrived, and Paul Harrison gave them a description of the defendant and his friends. This description was broadcast over the police radio, and all three were arrested shortly thereafter.

The defendant was charged with aggravated assault and was tried in District Court before a jury. At the trial, Steven Renehan identified the defendant as the man who had stabbed him. On August 2, 1979, the defendant was found guilty as charged.

The defendant has appealed and urges four grounds for reversal. First, he argues that there was no probable cause for his arrest, and that because of this illegal arrest certain out-of-court identifications should have been suppressed. Second, he argues that certain out-of-court identifications were unnecessarily suggestive and therefore should have been suppressed. The defendant's third argument is that the court's instruction to the jury on the issue of the defendant's flight was prejudicial. Finally, the defendant argues that he was denied the right to a speedy trial.

The defendant's first argument is that his arrest was not based on probable cause, and that all fruits of this arrest should have been suppressed. The defendant and his two friends were arrested twelve to fifteen minutes after Renehan was stabbed. The arresting officer testified that he was looking for three men who met the following description: "Three male subjects approximately twenty to twenty-five years of age. One of these subjects allegedly had on a three-quarter length greyish-blue coat. Also, one subject either had long hair or possibly a ponytail." The defendant conceded at oral argument that this description is sufficient to show probable cause. This is certainly true considering the circumstances of this case. The defendant and his two friends were arrested about twelve to fifteen minutes after the stabbing, about one third of a mile from where the stabbing occurred. They had run in the general direction of the place where they were arrested. It was about 3:30 in the morning in late January. It was cold and snowing. There were very few other pedestrians on the streets at that time. The arresting officer testified that this was the only group of three people he saw during his search. The defendant argues, however, that it is not clear from the record where the arresting officer got the description he used. The defendant relies on cases such as Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), and Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), which require that probable cause for an arrest be based on trustworthy information. The defendant argues that since the record does not clearly show where the arresting officer got the description, it cannot be shown that the officer was relying on trustworthy information.

At a hearing dealing with this issue, the arresting officer stated that he received a description of the suspects over the police radio, another description from another officer, who did not testify, and another from some person unknown to him. The officer did not specify the exact descriptions he received from each of these sources. The defendant argues that since the description the officer was relying on may have come from some unknown person, or from the other police officer, whose own source was not specified, it cannot be shown that the arresting officer had a reliable source for his description of the suspects.

For several reasons, the defendant's argument must be rejected. First, there was clearly a trustworthy source for the greater part of the description relied on by the arresting officer. Paul Harrison, one of the students, gave an officer a description of the three suspects. According to the officer, this description was of "three male subjects, approximately twenty to twenty-five years of age, all with long brown hair." Harrison was, of course, an eyewitness, and therefore was a reliable source for this information. See United States v. Masterson, 517 F.2d 8 (8th Cir.); cert. denied, 423 U.S. 915, 96 S.Ct. 221, 46 L.Ed.2d 143 (1975); Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375 (1971). The officer broadcast this description on the police radio. The arresting officer was justified in relying on this description when he heard it on the police radio. Whiteley v. Warden, supra; United States v. Impson, 482 F.2d 197 (5th Cir.), cert. denied, 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 246 (1973).

The only important fact missing from the description radioed by the officer was that one suspect was wearing a three-quarter length grey coat. Even though the arresting officer's source for this fact is not clear, this is not important. First, under the circumstances of this case, the description broadcast on the police radio was sufficient to show probable cause for the arrest. Second, even if the information concerning the coat came from some unidentified person, it could be taken into account in determining if there was probable cause to arrest the defendant. In general, in determining if there is probable cause, information may be considered, even if its reliability is not independently shown, if it is corroborated by reliable evidence. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Elgisser, 334 F.2d 103 (2d Cir.), cert. denied, 379 U.S. 881, 85 S.Ct. 151, 13 L.Ed.2d 87 (1964). In this case any description received from an unidentified source was corroborated by the reliable description on the police radio.

The defendant next argues that certain out-of-court identifications should have been suppressed. After the police arrived at the scene of the stabbing, Paul Harrison accompanied a police officer in searching for the suspects. During this time, Harrison was very agitated and was swearing vengeance against those who had stabbed his friend. After a few minutes the officer received a radio report that three suspects had been arrested. Harrison immediately calmed down. When they arrived at the scene of the arrest, the three suspects, including the defendant, were in handcuffs, and one at a time were led in front of Harrison who was sitting in the police car. He identified them as the three men that had been involved in the confrontation. Later at the police station the three were placed in separate rooms and Harrison was taken into each room in turn. He again identified the three men. He testified about both of these out-of-court identifications during the trial.

The defendant argues that each of these out-of-court identifications was unnecessarily suggestive, and that the admission of testimony about them constituted a violation of his due process rights. Although it is clear that these identifications were suggestive, we find that there was no error in the admission of testimony concerning them.

It is, of course, true that the circumstances surrounding an out-of-court identification may so unnecessarily suggest the guilt of the suspect that the admission of testimony relating to the identification may be prejudicial. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). The mere fact that the circumstances are suggestive, however, does not require that an identification be excluded. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Kasper 137 Vt. 184, 404 A.2d 85 (1979). The crucial factor is the reliability of the identification. Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253; State v. Kasper, supra, 137 Vt. at 192, 404 A.2d at 90. The totality of the circumstances must be considered. Stovall v. Denno, supra, 388 U.S. at 302, 87 S.Ct. at 1972. The Supreme Court has specified five factors to be considered in evaluating the reliability of an out-of-court identification. These are: the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention at that time, the accuracy of any prior description of the criminal, the degree of certainty shown by the witness at the confrontation, and the length of time between the crime and the confrontation. Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253; Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). An identification must be excluded only if there is a very substantial...

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