State v. Atherton

518 A.2d 962, 9 Conn. App. 340, 1986 Conn. App. LEXIS 1157
CourtConnecticut Appellate Court
DecidedDecember 23, 1986
Docket4408
StatusPublished

This text of 518 A.2d 962 (State v. Atherton) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Atherton, 518 A.2d 962, 9 Conn. App. 340, 1986 Conn. App. LEXIS 1157 (Colo. Ct. App. 1986).

Opinion

Hull, J.

After a trial to a jury, the defendant was convicted of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). The defendant appeals from the judgment rendered thereafter, claiming the following: (1) that the trial court erred in admitting into evidence the victim’s out-of-court identification of the defendant; (2) that he was deprived of the effective assistance of counsel; (3) that the trial court erred in denying his motion for mistrial grounded on the disclosure at trial of the existence of two taped, pre-arrest interviews of the defendant by police; and (4) that the trial court abused its discretion in allowing direct examination of the victim regarding her prior sexual experience. We find no error.

The jury could reasonably have found the following facts. On the evening of November 30, 1983, the victim and several friends, all living in a college dormitory, decided to go dancing at a local discotheque. The group walked there together, arriving about 10:40 p.m. Sometime between 1:15 a.m. and 1:30 a.m, because her friends did not wish to leave, the victim decided to walk back to the dormitory alone. A young man, whom the victim subsequently identified as the defendant, walked up behind her and began to talk to her. After walking with her for one or two minutes, the defendant locked his left arm around the victim’s neck, and drew her to him. When she protested, he threatened to kill [342]*342her if she made any noise. The defendant dragged the victim into a parking lot and sexually assaulted her. Afterward, he dragged her some distance to a railway embankment, and sexually assaulted her again. The victim then lied and told the defendant that she had cancer and that having sex increased her likelihood of dying. Upon hearing this, the defendant fled. The victim got partially dressed and ran back to her dormitory. She described her assailant to the dormitory resident director, who called the state police. She described him as having dirty blonde hair and acne, and said that he had worn a dungaree jacket.

On December 1, 1983, a state police detective was assigned to investigate the case. Police officers told the detective that the defendant resembled the victim’s description of her assailant. The detective assembled a photographic array of black and white photographs containing one of the defendant. The detective testified at trial that he considered the photograph of the defendant to be a poor likeness of him as he appeared in December, 1983.

The detective met with the victim on December 8, 1983. At that time, the victim was unable to make an identification of her assailant from the photo array. The detective then contacted the defendant and obtained his permission to take a color photograph. Another photo array was compiled, comprised of all color photographs. On December 15,1983, the victim identified the photograph of the defendant as that of her assailant.

Prior to trial, the defendant moved to suppress the evidence of the color photographic array on the grounds that it was not reliable and that the defendant’s due process rights and right to counsel had been violated. That motion was denied without written opinion.

At trial, the state told defense counsel and the court that it had just received two audio tapes of interviews [343]*343between the defendant and police, conducted prior to the defendant’s arrest. Defense counsel stated that he would object to the offer of such evidence. The defendant twice moved for a mistrial on the ground that the evidence of the tapes was prejudicial to his case. Those motions were denied. The tapes, however, were never offered into evidence.

During the state’s direct examination of the victim, the court allowed it to question the victim regarding her sexual experience prior to the assault. As a result, the fact that the victim was a virgin prior to the assault was revealed to the jury. The defendant objected to the question on relevancy grounds, and his objection was overruled.

I

The defendant’s first claim of error is that the trial court denied him due process by admitting into evidence the victim’s out-of-court identification of the defendant. The defendant claims that the “array consisted of what appears to be subjects younger than the defendant. Their physique appears to vary — their jaw lines and facial features are not prominent. The length of the hair on the other subjects is shorter than the defendant’s. Hair color, particularly of one subject, is much lighter than the rest. Most importantly, the defendant’s photograph stood out.” He cites State v. Carter, 198 Conn. 386, 503 A.2d 576 (1986), and State v. Fullwood, 193 Conn. 238, 476 A.2d 550 (1984), for the proposition that the introduction into evidence of the impermissibly suggestive and unreliable array violated his constitutional rights. He claims, therefore, that the introduction of this evidence amounts to reversible error.

“Our courts have repeatedly held 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. [344]*344Aversa, 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. Anderson, 6 Conn. App. 15, 21 n.4, 502 A.2d 446 (1986). In order to determine whether the identification procedures violated the defendant’s due process rights, a case by case inquiry must be made as to (1) whether the identification procedures were 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, 7 Conn. App. 27, 34, 507 A.2d 509 (1986).

The totality of the surrounding circumstances must be examined to determine whether a defendant has established that the proceeding was impermissibly suggestive. State v. Kinsey, 173 Conn. 344, 346, 377 A.2d 1095 (1977); see also State v. Maturo, 188 Conn. 591, 452 A.2d 642 (1982).

The defendant did not move the court under Practice Book § 3082 to articulate the factual and legal bases for its decision denying the defendant’s motion to suppress. It is the appellant’s responsibility to secure an adequate record on appeal. State v. Fraenza, 9 Conn. App. 228, 233, 518 A.2d 649 (1986).

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State v. Davis
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State v. DeMatteo
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State v. Ubaldi
462 A.2d 1001 (Supreme Court of Connecticut, 1983)
State v. McKnight
469 A.2d 397 (Supreme Court of Connecticut, 1983)
State v. Fullwood
476 A.2d 550 (Supreme Court of Connecticut, 1984)
State v. Sharpe
491 A.2d 345 (Supreme Court of Connecticut, 1985)
State v. Parker
500 A.2d 551 (Supreme Court of Connecticut, 1985)
State v. Aversa
501 A.2d 370 (Supreme Court of Connecticut, 1985)
State v. Perez
502 A.2d 368 (Supreme Court of Connecticut, 1985)
State v. Amarillo
503 A.2d 146 (Supreme Court of Connecticut, 1986)
State v. Findlay
502 A.2d 921 (Supreme Court of Connecticut, 1986)
State v. Carter
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Cite This Page — Counsel Stack

Bluebook (online)
518 A.2d 962, 9 Conn. App. 340, 1986 Conn. App. LEXIS 1157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-atherton-connappct-1986.