State v. Williamson

• Decision Date: 29 March 1988
• Docket Number: Nos. 13248,13249,s. 13248
• Citation: 206 Conn. 685,539 A.2d 561
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Donald L. WILLIAMSON.

Page 561

539 A.2d 561

206 Conn. 685

STATE of Connecticut v. Donald L. WILLIAMSON.

Nos. 13248, 13249.

Supreme Court of Connecticut.

Argued Dec. 9, 1987.

Decided March 29, 1988.

James V. Guarino, with whom, on the brief, were Elizabeth N. Byrne and Susan P. Geenty, for appellant in both cases (defendant).

Kevin T. Kane, Asst. State's Atty., with whom, on the brief, was C. Robert Satti, Sr., State's Atty., for appellee in both cases (State).

Before ARTHUR H. HEALEY, CALLAHAN, GLASS, COVELLO and HULL, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant, Donald L. Williamson, appeals from three convictions arising out of two jury trials held in 1972. The defendant was convicted of the crime of rape in violation of General Statutes (1958 Rev.) § 53-238 ¹ in a jury trial arising out of an incident that occurred on June 21, 1971. He was sentenced to a term of imprisonment of not less than ten nor more than twenty years to run consecutively to a sentence that he was then serving in West Virginia. The defendant was thereafter convicted of the crimes of rape in the first degree in violation of General Statutes (Rev. to 1972) § 53a-72 ² and kidnapping in the second degree in violation of General Statutes § 53a-94 ³ in a jury trial arising out of an incident that occurred on October 17, 1971. He was thereafter sentenced to a term of imprisonment of not less than ten years nor more than twenty years ⁴ to run consecutively to both the West Virginia sentence and the sentence previously imposed for the earlier Connecticut rape conviction.

The defendant appealed all of these convictions to this court, but the appeals were not filed until October 25, 1978. Although this court ordered that briefs be filed by a certain date, the briefs were not filed and the appeals were dismissed. The defendant then filed a habeas corpus petition, alleging that he was denied effective assistance of appellate counsel. The court, Spada, J., granted the defendant's petition and ordered the defendant to file his appeals by a certain date. Williamson v. Warden, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 273718 (September 22, 1986). The defendant then properly filed the two current appeals, which were argued together to this court.

The defendant raises a total of nine claims on appeal, including three that are common to both trials. Concerning the first rape conviction, the defendant claims that: (1) the trial court erred in admitting photographic identification of him; (2) the trial court erred in admitting rebuttal testimony of the complainant in the other case on appeal; (3) the trial court erred in sentencing him to a term of imprisonment consecutive to that imposed by a court of another jurisdiction; (4) the trial court erred in allowing him to appear in court dressed in prison clothes; and (5) he was denied his right to effective assistance of trial counsel. Concerning the later convictions for rape in the first degree and kidnapping in the second degree, the defendant claims that: (1) the trial court erred in failing to instruct the jury adequately regarding the elements of rape and kidnapping; (2) the trial court erred in sentencing him to a term of imprisonment consecutive to that imposed by a court of another jurisdiction; (3) the trial court erred in allowing him to appear in court dressed in prison clothes; and (4) he was denied his right to effective assistance of trial counsel. We find no error in either case.

I

The jury could reasonably have found the following facts regarding the defendant's first conviction of rape. In Norwich, on June 21, 1971, at approximately 4 p.m., the victim, age 16, was invited by a friend to go swimming at another friend's house. After changing into a bathing suit and jump suit, the victim proceeded alone on a path through the woods near the Stanton School en route to her friend's house. As she emerged from the woods near the school, she was accosted by a man with a gun, later identified as the defendant, who grabbed her by the arm. She did not know him. The defendant held a gun to the victim's back and ordered her to walk into the woods. He started kissing her and ordered her to remove her clothes. The defendant then had sexual intercourse with the victim. The defendant threatened to kill her if she told anyone about the incident. After the defendant left the scene, the victim proceeded to a neighbor's house on Maple Street, recounted the incident, and was driven home. When the police first spoke to her at approximately 4:40 p.m., she was "quite upset [and] distraught." Following a later identification of the defendant by the victim from photographs provided by the police, the defendant was arrested. Other facts will be related as they pertain to the specific claims that the defendant raises on this appeal.

A

The defendant's first claim is that the trial court erred when it admitted, over defense counsel's objection, the victim's identification of the defendant from photographs shown to her by the police after the alleged rape. The defendant maintains that the photographic identification procedures used were impermissibly suggestive and unreliable when viewed in the totality of the circumstances.

A hearing held with respect to the motion to suppress this out-of-court identification revealed the following police procedure. On the evening of June 21, Officer John Grillo of the Norwich police department went to the victim's home to interview her. Later that evening, he showed her a group of seven photographs, among which were one photograph of the defendant and one of his brother. The victim was unable to identify her attacker from these photographs. Two hours later, the victim's father called the police and told them that his daughter would like to see the photographs again. She had "calmed down considerably by [that time]." The police showed her the same seven photographs and she chose two photographs, one of the defendant and one of his brother, Terry, as appearing "similar" to her attacker but she was "doubtful." A member of the Norwich police told the victim that they would obtain more recent photographs of the defendant and his brother. The following morning, Officer James Dzialo showed the victim nine photographs, the original seven and two more recent photographs, one each of the defendant and his brother. This time the victim positively chose the more recent photograph of the defendant.

"A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure." State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984). "In determining whether identification procedures violate a defendant's due process rights, the required inquiry is made on an ad-hoc basis and is two-pronged: 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 on an examination of the 'totality of the circumstances.' " State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); State v. Miller, 202 Conn. 463, 470, 522 A.2d 249 (1987); see also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199-201, 93 S.Ct. 375, 382-383, 34 L.Ed.2d 401 (1972). "Only if the procedures used to identify the accused are unnecessarily suggestive are we required to analyze the factors that determine the reliability of an identification for due process purposes." State v. Miller, supra. "An identification procedure is unnecessarily suggestive when it ' "give[s] rise to a very substantial likelihood of irreparable misidentification." ' State v. Fullwood, [supra 193 Conn. at 243-44, 476 A.2d 550], quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); State v. Vaughn, 199 Conn. 557, 563, 508 A.2d 430 (1986)." State v. Williams, 203 Conn. 159, 174, 523 A.2d 1284 (1987).

The defendant attacks the photographic displays as impermissibly suggestive because of the recurrence of his photograph. He points out that photographs of him were shown to the victim on three different occasions. Moreover, of the nine photographs shown to the victim in the last array where she made a positive identification, two photographs were of the defendant and two were of the defendant's brother. "Pictorial recurrence is suggestive because by emphasizing the defendant it increases the risk of misidentification. Simmons v. United States, [supra, 390 U.S. at 377, 88 S.Ct. at 967]; State v. Harden, 175 Conn. 315, 320, 398 A.2d 1169 (1978)." State v. Ledbetter, 185 Conn. 607, 613, 441 A.2d 595 (1981). The recurrent use of a defendant's photograph in successive arrays, however, is not presumptively suggestive. United States v. Bowie, 515 F.2d 3, 7-8 (7th Cir.1975); State v. Boucino, 199 Conn. 207, 219, 506 A.2d 125 (1986). For example, in State v. Hinton, 196 Conn. 289, 493 A.2d 837 (1985), this court held that when the initial identification is made with a high degree of assurance and the photograph in the second array is more recent than that used in the first, the procedure may not be suggestive. In State v. Boucino, supra, two witnesses were shown an array of twenty-four photographs, which included one of the defendant, and then were shown an array of sixteen photographs, including two of the defendant. This was held not to be "unnecessarily suggestive." Id. In contrast, in State v. Ledbetter, supra, we held that the police procedures were impermissibly suggestive when those procedures included the recurrence of the defendant's photograph in two successive displays of eight photographs where only the defendant's photograph was repeated. In addition, Ledbetter included a later suggestive pretrial viewing of eight men that included the defendant. Id., 185...