State v. Williams

• Decision Date: 11 October 1977
• Citation: 173 Conn. 545,378 A.2d 588
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Raymond WILLIAMS.

Page 588

378 A.2d 588

173 Conn. 545

STATE of Connecticut v. Raymond WILLIAMS.

Supreme Court of Connecticut.

Argued April 6, 1977.

Decided Oct. 11, 1977.

Herbert R. Scott, New Haven, and, of the New Jersey bar, William J. Ewing, Montclair, N. J., for appellant (defendant).

D. Michael Hurley, Asst. State's Atty., with whom, on the brief, was C. Robert Satti, State's Atty., for appellee (state).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

HOUSE, Chief Justice.

The defendant was indicted by a grand jury in New London County in November of 1973 for the crime of robbery in the second degree in violation of § 53a-135(a) (2) of the General Statutes and with being a persistent dangerous felony offender, as defined by § 53a-40(a). The state's attorney for New London County also filed an information charging the defendant with two counts of larceny in the second degree in violation of § 53a-123, alleging that the defendant stole two cars on September 24, 1972, the date of the occurrences which gave rise to the indictment for robbery in the second degree. The defendant was tried by a jury and found guilty of robbery in the second degree and of the two counts of larceny in the second degree. On March 1, 1974, after the jury had returned their verdict on those charges, the defendant was put to plea on part two of the indictment charging him with being a persistent dangerous felony offender. He pleaded guilty and on March 26, 1974, was sentenced to a term of not less than twelve years nor more than life on the indictment and not less than one nor more than three years on each count of the information.

At the trial, evidence was introduced from which the jury could reasonably have found the following facts: On September 24, 1972, around 10 p.m., four people were present at Sailor Ed's Restaurant in Stonington: Chester J. Godomsky, the owner; Susan Hoelzel, a waitress; and John Donovan and David Wilcox, two dishwashers. Two armed men, one of them being the defendant, entered the rear of the restaurant, tied the hands of the two dishwashers and ushered them into the main room of the restaurant where one of the men announced to Godomsky and Mrs. Hoelzel that it was a holdup. Mrs. Hoelzel and Godomsky were tied up and all four victims were forced to lie facedown on the floor. The perpetrators, after robbing the victims and the restaurant, departed, only to return a short time later to obtain the keys to Godomsky's car. About this time, Neil McKenzie and Carol Thomson arrived at the restaurant in a Volkswagen belonging to Carol Thomson's mother. The two robbers ordered them out of the car and into the restaurant where they were bound, forced to the floor and robbed. The robbers then fled the scene in the Volkswagen, abandoning the Mercury Cougar in which they had arrived. The Cougar was found to contain various items belonging to the defendant and his family, including an identification card bearing his picture. The Cougar was subsequently found to have been registered to Jack W. Roach in Rhode Island, and the Massachusetts license plates on the car were found to have been issued to Willie Smith for a 1965 Buick Wildcat. The Cougar had been reported as stolen. The Volkswagen was later recovered in New London.

The principal defenses offered by the defendant were an alibi supported by testimony of defense witnesses that he had been at work in Massachusetts at the time of the robbery and testimony that he had purchased the Cougar from Willie Smith.

The defendant has assigned numerous errors in the conduct of his trial on the robbery and larceny charges and has challenged the legality of the court's acceptance of his plea of guilty to the charge of being a persistent dangerous felony offender. He also has claimed that § 53a-40(a), the persistent felony offender statute, is unconstitutional as applied to him. Particularly, he has pressed a claim of error in the court's refusal to exclude the identification testimony of Chester Godomsky, John Donovan and Susan Hoelzel, which evidence was admitted over his objections and exceptions and after his motions to suppress that testimony were denied.

The first witness to give identification testimony against the defendant was Godomsky, the owner of the restaurant. He had made an out-of-court identification based on photographs and had also made an in-court identification at the trial. He testified that he first saw the defendant when the two robbers walked the dishwashers into the restaurant and announced the holdup. He was face-to-face with the defendant standing up and got a very good look at him. He also observed his face frequently when the defendant came to where he was lying on the floor. The defendant was in the area near him for about fifteen minutes during the robbery. Godomsky described the defendant as a black male, well-dressed with horn-rimmed glasses a clean-cut individual. Shortly after the robbery, the police examined the Cougar which had been abandoned in the restaurant parking lot and found in it an identification card imprinted with a photograph of the defendant. The police showed Godomsky the I.D. card and he told them that the picture on the card looked like the man who had robbed him. He testified at the trial that at a later time he was called to the police station where he was shown a group of eight photographs and was asked if any of them were of the robbers. Among the photographs were two of the defendant, one of which was an enlargement of the I.D. card with paper placed across the writing and showing the defendant wearing horn-rimmed glasses. Godomsky picked out the enlarged I.D. card, but did not identify the other photograph of the defendant among the eight shown to him. In that photograph the defendant was not wearing glasses. He stated that when he saw the photograph which he identified he realized that it was a blowup of the I.D. card he had previously seen and he stated further: "I picked it because I still thought it was the same man." He also testified that he had seen the defendant at the grand jury hearing before the trial and that, a short time before the trial, he happened to see the defendant being led into the courthouse under guard and recognized him. Following the examination of Godomsky outside the jury's hearing, the defendant moved the court to exclude Godomsky's testimony concerning his pretrial and in-court identification. The court denied the motion, and, in the presence of the jury, Godomsky testified to the pretrial identification and also made an in-court identification of the defendant.

John Donovan, one of the dishwashers who was tied up by the robbers, also identified Williams as one of the holdup men. He testified that he was in the kitchen when the defendant approached him with a revolver in his hand. The lighting in the kitchen was excellent and he was face-to-face with the defendant, only inches away. He had a good look at the defendant before he was tied up and had another good look at him in the restaurant from a distance of one foot when the man crossed in front of him and another good look at him in the restaurant when Williams, with a gun, was questioning two other people. At that time, Donovan was six feet from Williams and could see his profile. He later saw Williams in court on the day of the grand jury hearing. He also made an in-court identification of Williams at the trial as one of the men who committed the robbery.

Another witness, Susan Hoelzel, also made an in-court identification of the defendant at the trial. She was a waitress at the restaurant and first observed the defendant, with a gun, walking towards her. The lighting was bright and she could see him clearly. Three weeks after the robbery, she had been shown several photographs by the police. She thought one looked familiar but could not tell for certain if he was the defendant because the man in the picture was not wearing glasses. She told the police, however, that he looked like the man who had held them up. She was positive in her in-court identification of Williams as one of the robbers.

Cases involving identification procedures have multiplied both before this court and before the United States Supreme Court since the 1967 decisions of the latter court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. See decisions of the United States Supreme Court in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; and, most recently, Manson v. Brathwaite, --- U.S. ----, 97 S.Ct. 2243, 53 L.Ed.2d 140; and the decisions of this court in State v. Middleton, 170 Conn. 601, 368 A.2d 66; State v. Panella, 168 Conn. 532, 362 A.2d 953; State v. Hafner, 168 Conn. 230, 362 A.2d 925; State v. Smith, 165 Conn. 680, 345 A.2d 41; State v. Oliver, 161 Conn. 348, 288 A.2d 81; State v. Oliver, 160 Conn. 85, 273 A.2d 867, cert. denied, 402 U.S. 946, 91 S.Ct. 1637, 29 L.Ed.2d 115; State v. Duffen, 160 Conn. 77, 273 A.2d 863, cert. denied, 402 U.S. 914, 91 S.Ct. 1397, 28 L.Ed.2d 657; State v. Carnegie, 158 Conn. 264, 259 A.2d 628, cert. denied, 396 U.S. 992, 90 S.Ct. 488, 24 L.Ed.2d 455; and, most recently, State v. Kinsey, 173 Conn. 344, 377 A.2d 1095.

The United States Supreme Court in Manson v. Brathwaite, supra, 97 S.Ct. 2252, reiterated that "(t)he standard, after all, is that of fairness," and that must be determined by the totality of the circumstances as particularly emphasized in the Stovall and Biggers cases. It observed (p. 2253) that "reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in Biggers, ...