State v. Wiggins, 4022

• Citation: 507 A.2d 518,7 Conn.App. 95
• Decision Date: 15 April 1986
• Docket Number: No. 4022,4022
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Douglas WIGGINS.

Page 518

507 A.2d 518

7 Conn.App. 95

STATE of Connecticut v. Douglas WIGGINS.

No. 4022.

Appellate Court of Connecticut.

Argued Feb. 18, 1986.

Decided April 15, 1986.

Margaret P. Levy, Hartford, for appellant (defendant).

Christopher Malany, Deputy Asst. State's Atty., with whom, on the brief, were John Bailey, State's Atty., and Thomas Miano, Former Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and DALY and BIELUCH, JJ.

DUPONT, Chief Justice.

After a trial to a jury, the defendant was convicted of robbery in the first degree in violation of General Statutes (Rev. to 1979) § 53a-134(a)(2), and assault in the second degree in violation of General Statutes (Rev. to 1979) § 53a-60(a)(2). The defendant appeals from the judgment rendered thereafter, claiming that the trial court erred (1) in denying the defendant due process of law by allowing an in-court identification which was tainted by a prior impermissibly suggestive photographic identification; (2) in granting the state's motion for joinder and denying the defendant's motions for severance; and (3) in denying the defendant the right to a trial by jury by failing to disqualify a juror for allegedly sleeping during the trial.

The jury could have reasonably found the following facts based upon the evidence presented. On November 22, 1980, Delroy Llewellyn was working alone as the night manager of a gasoline station located on Albany Avenue in Hartford. Llewellyn was carrying a gun and the station's cash receipts in his shirt pocket. At approximately 3:45 a.m., a male, whom Llewellyn recognized as having been at the gasoline station on previous occasions, came into the waiting room and asked Llewellyn for change for a dollar. As Llewellyn counted out the change, the man stepped behind him, drew a handgun and pinned Llewellyn's arms behind him. At this time, a second male, whom Llewellyn also recognized as a prior customer, entered the waiting room with a gun, raised it to Llewellyn's jaw, and fired. His jaw was shattered as a result of the gunshot. After the second male took Llewellyn's gun and the station's cash receipts, both perpetrators fled the scene with a third man who was outside of the waiting room. The victim later identified the second robber as the defendant in this case.

After being released from the hospital, Llewellyn went to police headquarters on November 25, 1980, to view a photographic array. At this time, the victim selected a photograph of the first perpetrator who had held Llewellyn while he was being shot. Subsequently, in May or June, 1981, ¹ Llewellyn, by chance, saw the second perpetrator standing outside a building and was able to observe him in daylight for approximately one minute. Llewellyn reported this sighting to the police. The defendant later stipulated that his mother lived at the address where the victim saw the perpetrator, at the time the crimes were committed.

On May 11, 1982, Llewellyn selected a color photograph of the defendant from a stack of ten photographs given to him by a police officer investigating the case. After Llewellyn verified that the photograph pictured the assailant who shot him, the police officer showed Llewellyn a second photograph of the defendant, this time with a different facial expression, in order to confirm the victim's identification of his assailant. Llewellyn told the police officer that the second photograph pictured the same man he had previously identified as his assailant. ²

At a hearing held prior to trial, the defendant moved to suppress the identification evidence in this case. In denying the motion, the trial court found that the photographic array shown to Llewellyn was not impermissibly suggestive and that, even if it were, the identification made by the victim was nevertheless reliable.

In a separate incident, the defendant was arrested on the evening of April 20, 1982, and charged with two counts of carrying a weapon in a motor vehicle in violation of General Statutes § 29-38. The defendant was one of five males arrested after a chase of their vehicle by police. A search of their car revealed one gun, which had been fired. Another loaded gun was found near the location where the car carrying the defendant was finally stopped.

On May 19, 1983, the state filed a motion for consolidation, pursuant to Practice Book § 829, requesting that the two cases involving the defendant be tried together. This motion was granted and the defendant's motion to sever the cases was denied. The motion to sever was renewed at trial and was again denied by the court. At the conclusion of the trial, the jury returned a verdict of guilty to the charges of robbery in the first degree and assault in the second degree arising out of the robbery at the gasoline station in 1980, and a verdict of not guilty to the charges of carrying weapons in a motor vehicle arising out of the 1982 incident.

The defendant's first claim is that the trial court denied the defendant due process by allowing an in-court identification by the victim of the gasoline station robbery, an identification which the defendant alleges was tainted by a prior impermissibly suggestive photographic identification. It is well established that a defendant who attempts to suppress identification evidence has the burden of proving that the identification resulted from an unconstitutional procedure. See State v. Aversa, 197 Conn. 685, 693, 501 A.2d 370 (1985); State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984); State v. McKnight, 191 Conn. 564, 570, 469 A.2d 397 (1983); State v. Frazier, 7 Conn.App. 27, 34, 507 A.2d 509 (1986); State v. Anderson, 6 Conn.App. 15, 21 n. 4, 502 A.2d 446 (1986). More specifically, our Supreme Court has repeatedly held that a conviction based on an in-court identification which follows an out-of-court photographic identification will be set aside only " 'if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' " State v. Davis, 198 Conn. 680, 684, 504 A.2d 1372 (1986), quoting State v. Fullwood, supra, 193 Conn. 243-44, 476 A.2d 550; State v. Parker, 197 Conn. 595, 598, 500 A.2d 551 (1985); State v. Vass, 191 Conn. 604, 609, 469 A.2d 767 (1983); State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983); see also Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

In order to decide whether the identification procedures violated the defendant's right to due process, it must be determined (1) whether the identification procedures were impermissibly and unnecessarily suggestive, and, if so, (2) whether the identification was nevertheless reliable based upon an examination of the totality of the circumstances. See State v. Findlay, 198 Conn. 328, 336-37, 502 A.2d 921 (1986); State v. Amarillo, 198 Conn. 285, 291, 503 A.2d 146 (1986); State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985); State v. Frazier, supra, 7 Conn.App. 34, 507 A.2d 509.

A review of the record in this case indicates that the identification procedures employed by the police were not so impermissibly suggestive as to constitute error. The defendant's claim that the failure to preserve the original photographic array intact makes it impossible to know whether the identification procedures were improperly suggestive is unpersuasive for several reasons. First, counsel for the defendant had the opportunity to view the complete photographic array and did take notes on it prior to its partial loss. Thus, the defendant had the opportunity to argue at trial that specific photographs seen by defense counsel were impermissibly suggestive, rather than claim on appeal that it was impossible to determine whether any of the photographs were impermissibly suggestive. Second, the failure to preserve the original photographic array does not preclude a finding that the identification procedures were not impermissibly suggestive. State v. Miles, 195 Conn. 552, 555, 489 A.2d 373 (1985); State v. Doolittle, supra, 189 Conn. 199, 455 A.2d 843. The preservation of the array is not a condition precedent to an in-court identification. State v. McKnight, supra, 191 Conn. 570 n. 5, 469 A.2d 397.

The manner in which the victim was shown the photographs was not impermissibly suggestive. It is generally recognized that the presentation of several photographs, including that of the suspect, to a witness is by itself not impermissibly suggestive. State v. Fullwood, supra, 193 Conn. 244-45, 476 A.2d 550. We conclude that the trial court was correct in denying the defendant's motion to suppress the identification evidence. ³

The defendant's second claim is that the trial court erred in granting the state's motion for joinder and in denying the defendant's motions for severance. The decision of whether the cases should have been tried separately or together was within the discretion of the trial court and that decision cannot be disturbed unless the trial court manifestly abused its discretion. State v. Rodgers, 198 Conn. 53, 63, 502 A.2d 360 (1985); State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982); State v. King, 187 Conn. 292, 302, 445 A.2d 901 (1982); State v. Frazier, supra, 38.

The state presented its evidence to the jury in two separate segments, first introducing evidence as to the robbery and assault charges, and then introducing evidence as to the weapons charges. At the conclusion of the evidence as to the first incident, the court told the jury that the second phase of the trial was about to begin, that is, a consideration of the second incident. Thus, the possibility that the jury would be confused or that the jury would consider the evidence in a cumulative fashion was minimized. See State v. King, supra, 187 Conn. 302, 445 A.2d 901; State v. Frazier, supra, 7 Conn.App. 38, 507 A.2d 509. Furthermore, the trial court, in its charge to the jury, clearly instructed the jurors to...