State v. Vass

• Decision Date: 20 December 1983
• Citation: 469 A.2d 767,191 Conn. 604
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Maynard T. VASS.

Page 767

469 A.2d 767

191 Conn. 604

STATE of Connecticut v. Maynard T. VASS.

Supreme Court of Connecticut.

Argued Oct. 14, 1983.

Decided Dec. 20, 1983.

Aaron P. Slitt, Hartford, for appellant (defendant).

Katherine J. Lambert, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Edward Spinella, Asst. State's Atty., for appellee (state).

Before PETERS, HEALEY, PARSKEY, SPONZO and COVELLO, JJ.

PETERS, Associate Justice.

The principal issue on this appeal from a conviction for sexual assault in the first degree and kidnapping in the second degree is the validity of the defendant's identification. The defendant, Maynard T. Vass, was charged by substitute information in two counts, sexual assault in the first degree, in violation of General Statutes § 53a-70(a), ¹ and kidnapping in the second degree, in violation of General Statutes § 53a-94(a). ² The jury returned verdicts of guilty on both counts, and the trial court rendered judgment in accordance with the verdicts. The defendant appeals from the judgment of conviction.

The jury might reasonably have found the following facts: The crimes occurred during the afternoon of Saturday, November 24, 1979, at a grocery store in Southington. The victim, an art student who worked at the store part-time, had just closed the store for the day. She had entered her car, intending to drive home, when the defendant knocked on the car window and asked her to re-open the store so that he could buy some cigarettes. Recognizing him as a customer who had been in the store earlier that afternoon, she agreed to his request. They entered the store, and the defendant purchased his package of cigarettes.

As the victim was again preparing to leave the store, the defendant put his arm around her neck and placed a knife under her chin. At knifepoint, he ordered her to lock the door, to go with him to the back of a small stockroom, and to undress. On the cement floor of the stockroom, he attempted vaginal intercourse and forced the victim to perform oral intercourse. He continued to threaten her with his knife, and slapped her for crying too loudly. He warned her that he would send three of his friends to see her if she reported the incident to anyone.

After further attempts at vaginal intercourse, the defendant ended his assault. Directing the victim to get dressed, he told her that he was a failure, and that he worried that he would not be able to see his children. He assured the victim that she was still a virgin. Upon leaving the store, he instructed the victim to wait there for five minutes and not to call the police. Shortly thereafter, the victim left the store and returned to her home. Visibly upset, she ran upstairs to her bedroom and subsequently told her parents of the attack.

That evening, the victim went with her father to the Southington Police Department to report the incident. At the police station, she gave a detailed description of her assailant's appearance, height and age, and produced a drawing that she had made of him at home. A few days later, she also assisted in the preparation of a composite photograph.

While at the Southington Police Station the victim viewed approximately 100 photographs from the police files, but did not make an identification. During the week following the offense, she viewed several hundred more photographs at the neighboring police departments in Meriden and Bristol. On several occasions, as the investigation progressed, a Southington police officer brought additional photographs to the victim's house. At no time did she identify the perpetrator of the crime.

On December 8, 1979, two weeks after the offense, the Southington police officer returned to the victim's home with an array of six additional photographs. The victim examined each of the photographs individually. When she reached the defendant's photograph, she gasped and positively identified him as her assailant. At no time prior to trial was the victim asked to make an in-person identification of the defendant. She made an in-court identification at the trial.

On the basis of the victim's identification, the defendant was arrested in Florida. He had left Connecticut with his girl friend, Lynn Haynes, on Tuesday, November 27, 1979, three days after the assault on the victim. During the course of their trip to Florida, the defendant told Haynes that he was "in trouble," that he had picked up a girl and had unsuccessfully tried "to come on to her." Previously, the defendant had told Haynes that he was worried that if he stayed with her he might not be able to see his two children. Witnesses placed the defendant in the vicinity of the scene of the assault on the afternoon of November 24, 1979. At the trial, the defendant presented an alibi defense.

The defendant raises numerous claims of error on this appeal, which can fairly be grouped into four categories: (1) admission of the victim's photographic and in-court identifications of the defendant over his objection that the photographic array was unnecessarily suggestive and the identifications unreliable; (2) denial of the defendant's request for a mistrial so that his attorney could testify as a witness to impeach the credibility of Lynn Haynes; (3) denial of the defendant's requests to charge; and (4) various evidentiary rulings. We find no error.

I

The defendant's first claim of error arises out of the pretrial photographic identification procedures employed by the state in this case. He argues that these procedures were so impermissibly suggestive that the admission at trial of the victim's in-court identification of the defendant and of testimony describing her previous identification of his photograph violated his right to due process of law. ³ We disagree.

A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from unconstitutional procedures. State v. McKnight, 191 Conn. 564, 570, 469 A.2d 397 (1983); State v. Kinsey, 173 Conn. 344, 345-46, 377 A.2d 1095 (1977). Our cases have defined the relevant constitutional inquiry as follows. " '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 upon an examination of the totality of the circumstances.' " State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983), quoting State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). Further, we have stated that a conviction based upon an in-court eyewitness identification following a pretrial photographic identification will be set aside " ' "if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United [States], 390 U.S. 377, 384, 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968).' State v. Anderson, 178 Conn. 287, 291, 422 A.2d 323 (1979)." State v. Doolittle, supra. See also State v. McKnight, supra.

The defendant in this case argues that the photographic array from which the victim identified his picture was impermissibly suggestive for the following reasons: (1) the victim might have viewed the defendant's photograph at the Meriden Police Department and failed to identify it prior to her positive identification from the final array; (2) the six-picture final array contained three photographs of men approximately six feet tall when the victim had consistently described her assailant as between five feet seven and five feet nine inches tall; and (3) the defendant's height and weight, which were consistent with the victim's description, were visible on the back of his photograph. The defendant also argues that the identification was unreliable because the victim first described her assailant as approximately forty-five years old while the defendant was only thirty-two years old at the time of the offense. Further, he claims that the photographic identification was constitutionally suspect because of the state's failure to conduct any corroborative procedures such as a line-up, voice identification or seminal fluid analysis.

We reject as speculative the defendant's claim that the victim might have previously seen his picture when she viewed photograph files at the Meriden Police Department. Although we have recognized that the recurrence of a single photograph in more than one array may increase the likelihood of misidentification; State v. Ledbetter, 185 Conn. 607, 612, 441 A.2d 595, 598 (1981); the defendant in this case has failed to prove any suggestive recurrence. The defendant testified that he had been arrested and photographed in Meriden, but offered no evidence that the photograph was in any of the files displayed to the victim or indeed that it had been retained by the Meriden police. The victim testified that she had not previously seen the photograph. The credibility of the witnesses on the motion to suppress was a question for the trial court. State v. McKnight, 191 Conn. 564, 571-72, 469 A.2d 397 (1983); State v. Gold, 180 Conn. 619, 647, 431 A.2d 501 (1980).

We find equally unpersuasive the defendant's claim that discrepancies in height between the defendant and several other members of the final array rendered the identification procedure suggestive. Four of the six photographs do have visible height calibrations next to the individuals pictured, indicating that three of those photographs depict men approximately six feet tall. The defendant's picture had no height scale on the front, although his height is written on the back of the photograph. At the hearing on the defendant's motion to suppress, however, the victim testified that the investigating officer did not comment as he handed her the six photographs, that she concentrated only on the faces, that she had never noticed the height scales until the...