State v. West

• Decision Date: 20 March 1984
• Docket Number: No. 12088,12088
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. James WEST.

Page 775

472 A.2d 775

192 Conn. 488

STATE of Connecticut v. James WEST.

No. 12088.

Supreme Court of Connecticut.

Argued Jan. 17, 1984.

Decided March 20, 1984.

James J. Ruane, Asst. Public Defender, with whom, on brief, were Richard T. Meehan, Sr., and Richard T. Meehan, Jr., Bridgeport, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on brief, was Donald A. Browne, State's Atty., for appellee (state).

Before SPEZIALE, C.J., and PETERS, HEALEY, PARSKEY and SHEA, JJ.

PETERS, Associate Justice.

The question presented by this appeal is whether a photograph, obtained in connection with an arrest which is subsequently nolled, comes within the erasure statute, General Statutes § 54-142a, so that the photograph may not be used for an out-of-court photographic identification of a criminal defendant in an unrelated case. The defendant, James West, was charged by information with the sale of a controlled substance, cocaine, in violation of General Statutes § 19-480(a). ¹ The jury returned a verdict of guilty, and the trial court rendered judgment in accordance with the verdict. The defendant appeals from the judgment of conviction.

The jury might reasonably have found the following facts: On the morning of November 8, 1979, an undercover officer went to the defendant's apartment and purchased from him a small amount of cocaine for $25.00. The entire transaction took approximately five minutes, during which time the defendant never left the officer's sight. The officer was the only witness to the sale. She had seen the defendant once before for three to five minutes during a similar transaction between the defendant and an informant. Immediately after her purchase, the officer recorded a detailed description of the defendant.

Approximately six and one-half months later, on May 21, 1980, the undercover officer identified a photograph of the defendant from a six-member photographic array constructed by another officer. She selected the defendant's photograph from the array without any hesitation.

At the defendant's trial, which took place on January 17, 18, 19, and 20, 1983, the undercover officer made an in-court identification of the defendant. The only issue at trial was whether the officer had accurately identified the defendant as the person from whom she had purchased the cocaine. The defendant presented an alibi defense.

Prior to trial, the defendant moved to suppress the identifications, claiming that the photographic identification violated General Statutes § 54-142a, which governs the erasure of criminal records, and that the in-court identification was the fruit of the illegal photographic identification. After conducting a hearing on the motion to suppress, the trial court found that the state had obtained the photograph of the defendant, which formed the basis of the out-of-court identification in this case, in connection with a prior unrelated arrest of the defendant on February 12, 1979. The February charges were nolled, and, pursuant to General Statutes § 54-142a(c), ² the records of those charges were "erased" on April 15, 1980. Although the trial court agreed with the defendant's claim that the inclusion of the "erased" photograph in the May 21, 1980 array violated the erasure statute, the court denied the motion to suppress the photographic identification. The court reasoned that the defendant had presented no evidence that the statutory violation was intentional, and that, under those circumstances, suppression of the reliable identification could serve no deterrent purpose. The trial court also denied the motion to suppress the in-court identification, holding that it met constitutional standards of reliability. The court found specifically that the in-court identification was independent of the earlier photographic identification.

On appeal the defendant contends that the trial court erred in denying his motion to suppress both identifications and in admitting the erased photograph as a full exhibit. Because we hold that the inclusion of the photograph in the identification array did not violate the erasure statute, we find no error.

General Statutes § 54-142a provides for the sealing, erasure and, in certain cases, destruction of police, court and prosecutorial records insofar as they pertain to criminal charges that do not result in conviction or for which the defendant has been pardoned. The defendant bases his claim on General Statutes § 54-142a(c), ³ which provides in part: "[w]henever any charge in a criminal case has been nolled ... if at least thirteen months have elapsed since such nolle, all police and court records of the state's or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased ... and the clerk or person charged with the retention and control of such records shall not disclose to anyone their existence or any information pertaining to any charge so erased...." Section 54-142a(e) ⁴ further provides that the clerk or other custodian of erased records must adopt appropriate security procedures to safeguard against unauthorized release of erased records and that "[a]ny person who shall have been the subject of such an erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath."

The defendant contends that the photograph that was taken as part of the routine processing of his arrest on February 12, 1979 was a police record pertaining to that arrest, and was erased with the rest of that file on April 15, 1980. Because erased records "shall not [be] disclose[d] to anyone"; §§ 54-142a(c), (e); the defendant asserts that the disclosure of his "mugshot" to the undercover officer violated the erasure statute. He claims further that the sanction for such a violation must be the suppression of any resulting identification. Anything less, according to the defendant, would frustrate the purpose of the erasure statute, which is to protect individuals who are arrested but not convicted from the adverse effects of an arrest record. We do not agree with the defendant's construction of the statute.

In our construction of the erasure statute, we must consider the requirements of any other statute that regulates the disposition of data acquired by the police in the ordinary course of a criminal proceeding. Under General Statutes § 29-15, ⁵ a person whose arrest has not led to a conviction has the right to have returned to him identifying data such as fingerprints and pictures, if he had no prior criminal record. The defendant, who has a prior conviction, concedes that he has no claim for return of the photograph at issue in this case. We must decide, as a matter of first impression, whether the erasure statute, § 54-142a, requires the suppression of a photograph which § 29-15 permits the police to retain. We hold that it does not.

We start with the familiar assumption that the legislature, in enacting § 54-142a, was cognizant of existing statutes such as § 29-15, and intended to create a harmonious and consistent body of law. Vartuli v. Sotire, 192 Conn. 353, 362, 472 A.2d 336 (1984); City Council v. Hall, 180 Conn. 243, 251, 429 A.2d 481 (1980); Engle v. Personnel Appeal Board, 175 Conn. 127, 130, 394 A.2d 731 (1978). We must, if possible, read the two statutes together and construe each to leave room for the meaningful operation of the other.

The legislative history of §§ 29-15 and 54-142a supports the general presumption that the two statutes were not meant to conflict. Although the history of § 54-142a does not explicitly indicate whether the legislature intended to make identification data subject to erasure, it does indicate that the legislature was aware of the relationship between §§ 29-15 and 54-142a, and did not intend the latter statute to repeal the former by implication. Both statutes have been reenacted repeatedly since 1949 with revisions not pertinent to the present conflict, and the legislature has once amended both statutes in a single Public Act. Public Acts 1974, No. 74-163. By that enactment, the legislature amended § 29-15 to provide that identification data relating to nolled charges would be returnable within sixty days after thirteen months of the nolle, rather than within sixty days of the nolle. The stated purpose of this amendment was to conform the nolle provisions of § 29-15 to those of § 54-142a(c). See 17 H.R.Proc., Pt. 6, 1974 Sess., p. 3050.

We can reconcile the ambit of the two statutes without in any way retreating from our prior cases interpreting § 54-142a. Where § 54-142a applies, we held in Doe v. Manson, 183 Conn. 183, 185, 438 A.2d 859 (1981), that "[e]rasure involves sealing the files and segregating them from materials which have not been erased and protecting them from disclosure, except that disclosure is permitted in a few, very limited circumstances described in the statutes." The fact that erasure requires nondisclosure, even to law enforcement personnel for law enforcement purposes, does not itself establish the conditions under which the statute mandates erasure. In Doe v. Manson, we concluded, at 188, 438 A.2d 859, that the "court records" which were to be erased after the defendant had received an absolute pardon included a mittimus and a presentence investigation report, but not other records compiled by the department of corrections in the course of the defendant's incarceration. We did not determine what was encompassed by § 54-142a's reference to police records, which are also subject to erasure, nor did we consider whether such records include the identification data whose return is regulated by § 29-15.

Similarly, Lechner v. Holmberg, 165 Conn. 152, 328 A.2d 701 (1973), did not

present any question concerning identification data. There, the issue was whether a criminal defendant, who had been acquitted, had a right to obtain a copy of...