State v. Willin

• Decision Date: 03 April 1979
• Citation: 413 A.2d 829,177 Conn. 248
• Parties: STATE of Connecticut v. John WILLIN.
• Court: Connecticut Supreme Court

Page 829

413 A.2d 829

177 Conn. 248

STATE of Connecticut v. John WILLIN.

Supreme Court of Connecticut.

Argued Jan. 11, 1979.

Decided April 3, 1979.

Thomas D. Clifford, Hartford, with whom was Robert L. Wyld, Hartford, for appellant (defendant).

Bernard D. Gaffney, Asst. State's Atty., with whom, on the brief, was George D. Stoughton, State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

BOGDANSKI, Associate Justice.

The defendant was tried before a jury and found guilty of assault in the third degree in violation of § 53a-61(a)(1) of the General Statutes. From the judgment entered on the verdict, the defendant has appealed to this court.

From the evidence introduced at trial the jury could reasonably have found the following facts: On October 28, 1975, Michael Jordan, age thirteen, took part in a pony league football practice at Mill Pond Park which is next to the town hall in Newington. At about 8 p. m. when the practice session ended, Michael started for home on his bicycle. He rode the length of the parking lot adjoining the town hall to a path leading to a footbridge which runs parallel to Cedar Street. As he reached the path he heard footsteps behind him and, looking back, he saw a man wearing a purple jacket and a white rag or towel around his neck running towards him. At that point the man was about twenty-five feet away. As Michael reached the footbridge, he was grabbed from behind and pulled off his bicycle by the man who said "Don't worry. I won't hurt you." The man then dragged Michael about eight feet towards a bushy, wooded area. Michael, however, put up a struggle and was able to break free from his attacker.

Michael then turned and ran back to Mill Pond Park where he told Thomas Bascetta, Jr., his football coach, and Robert J. Seiler, a police officer on duty in the area, what had happened. He described his assailant, including the man's height and hair color. He also stated that he last saw the man running in a westerly direction across the footbridge towards Willard Avenue. Officer Seiler radioed this information to the police dispatcher. Sergeant William J. Cotter, who was at police headquarters, immediately drove his cruiser to Willard Avenue, where he observed a man wearing a dark jacket and what appeared to be a white towel around his neck jogging in a southerly direction along the east side of the street. When Sergeant Cotter first saw the suspect, not more then two or three minutes had elapsed from the time of the report of the incident on the police radio. Sergeant Cotter was then joined by Officer Seiler, who took the suspect by police cruiser to the town hall parking lot.

At the parking lot, Michael Jordan, from a distance of two or three feet, made a positive identification of the defendant as he was sitting alone in the back seat of the police cruiser with the interior light of the vehicle on. The identification was made within eight to ten minutes of the assault.

Before the identification, Thomas Bascetta, Michael's football coach, who was also an off-duty police officer, told Michael that the police had someone that they wanted Michael to look at. At first Michael, who was very upset, was afraid to look into the police cruiser but Bascetta told him he need not be afraid because "this guy won't know you from Adam." Bascetta also cautioned Michael to take his time and to be sure before making an identification.

A pretrial hearing was held on the admissibility of the above identification. At the hearing, Michael testified that as he broke away from his assailant, he looked directly at the man, who was facing him at a distance of about six to eight feet; that it was a clear night; that there were street lights on Cedar Street as well as lights in the town hall parking lot and that he had no difficulty in seeing the man. He also made a positive in-court identification of the defendant who was seated at counsel's table. At trial, substantially the same evidence as to the out-of-court identification was introduced, and the witness once again made a positive in-court identification of the defendant.

On appeal the defendant claims that the admission of the out-of-court identification was violative of his due process rights; that the court applied an erroneous standard in determining the admissibility of that evidence; that the in-court identification was fatally tainted by the out-of-court identification; and that the court erred in charging the jury concerning the evaluation of the identification evidence in the case.

The defendant contends that the identification procedure used by the state, a one-on-one confrontation between victim and suspect, was impermissibly and unnecessarily suggestive, and that the identification itself, based on the totality of the circumstances, was unreliable.

We note first that a determination of whether there was a violation of due process rights in an identification procedure "depends on the totality of the circumstances surrounding it." Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). In the recent case of State v. Middleton, 170 Conn. 601, 368 A.2d 66 (1976), this court observed (170 Conn. p. 608, 368 A.2d p. 69) that "(w)ithout question, almost any one-to-one confrontation between a victim of crime and a person whom the police present to him as a suspect must convey the message that the police have reason to believe him guilty. . . . On the other hand, we must also consider that prompt on-the-scene confrontations tend under some circumstances to ensure accuracy. . . . Bates v. United States, 405 F.2d 1104, 1106 (D.C. Cir.). . . . (and that) the benefits of promptness not only aid reliability but permit a quick release of an innocent party if there is no positive identification and allow the police to resume the investigation with a minimum of delay. Washington v. United States, 334 A.2d 185 (D.C.App.)."

We note that the "show-up" in the present case involved a prompt on-the-scene confrontation and that at eight o'clock in the evening there would necessarily have been a long delay in summoning counsel and setting up a formal lineup. Russell v. United States, 408 F.2d 1280 (D.C. Cir. 1969). Under these circumstances we cannot conclude that the trial court erred in finding that the identification procedure used by the state was not unnecessarily suggestive.

It is, moreover, well settled that even impermissibly suggestive pretrial confrontations need not necessarily be excluded from evidence. In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the United States Supreme Court expressly declined to adopt a per se exclusionary rule as regards "unnecessarily suggestive" identification procedures, holding instead that the admissibility of such evidence should be determined by "the totality of the circumstances." The court in Biggers emphasized that the central question in such situations is "whether . . . the identification was reliable even though the confrontation procedure (used) was suggestive." Id., 199, 93 S.Ct. 382.

In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Supreme Court reaffirmed the holding of Biggers and emphasized once again that "reliability is the linchpin in determining the admissibility of identification testimony . . . . The factors to be considered (in determining reliability) are set out in Biggers, 409 U.S. at 199-200 93 S.Ct. (375,) at 382, 34 L.Ed.2d 401 (1972). These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Manson v. Brathwaite, supra, 114, 97 S.Ct. 2253.

In the present case, the witness Michael Jordan testified that when he heard footsteps behind him, he looked back and saw a man wearing a purple jacket and what appeared to be a white rag or towel around his neck. He testified that it was a clear night; that there were street lights on Cedar Street as well as lights in the town parking lot, and that he had no difficulty in seeing his attacker after he managed to break free, as the man was looking directly at him from only six to eight feet away. Sergeant Cotter testified that when he first saw the defendant on Willard Avenue, not more than two to three minutes after the alleged assault, the defendant matched the description given by the victim. ¹ As previously noted, the length of time between the assault and the identification was minimal, being in all no more than ten minutes, and the witness was positive in his identification of the defendant, both at the parking lot following the assault and in court. There is, moreover, no evidence in the record that there were any joggers, other than the defendant, in the area at the time.

Having carefully reviewed the "totality of the circumstances" surrounding the out-of-court identification of the defendant by the witness Jordan, we conclude that the trial court did not err in refusing to suppress that evidence. As the United States Supreme Court stated in Manson, "(s)hort of (a very substantial likelihood of irreparable misidentification) such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature." Manson v. Brathwaite, supra, 116, 97 S.Ct. 2254.

The defendant next claims that the court applied an erroneous standard in determining the admissibility of the out-of-court identification; that the standard employed by the court was the "independent source" standard, which is used for determining the...