State v. Smith

512 A.2d 189, 200 Conn. 465, 1986 Conn. LEXIS 887
CourtSupreme Court of Connecticut
DecidedJuly 15, 1986
Docket11693
StatusPublished
Cited by81 cases

This text of 512 A.2d 189 (State v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Smith, 512 A.2d 189, 200 Conn. 465, 1986 Conn. LEXIS 887 (Colo. 1986).

Opinion

Callahan, J.

The defendant was charged in an information with robbery in the first degree in violation of General Statutes (Rev. to 1979) § 53a-1341 and sexual assault in the first degree in violation of General Statutes (Rev. to 1979) § 53a-70.2 The charges arose out of the robbery and sexual assault of the part owner and general manager of a health foods store in Middletown at about 6:30 p.m. on February 8, 1980. The defendant was tried by a jury and found guilty of both counts of the information. The trial court sentenced him to consecutive terms of not less than ten years nor more than twenty years on each count for a total effective sentence of not less than twenty years nor more than forty years.

The defendant has appealed claiming that the trial court erred: (1) by allowing an unnecessarily suggestive in-court identification procedure; (2) by denying [467]*467the defendant a continuance during the trial; and (3) by failing to suppress the defendant’s confession. We find no error.

The defendant does not dispute the sufficiency of the evidence to sustain his conviction. A brief recitation of the facts concerning the incident which the jury could reasonably have found, however, is necessary to place his claims in proper perspective. The victim was alone in her store when a partially masked white male entered, brandishing a large knife. Once inside the store he forced the victim down behind the counter and demanded the contents of the cash register and her pocketbook. He then took her outside, around the corner of the building where he made her remove her slacks and underwear and sexually molested her. After a period of time, having been frightened by a car pulling into a nearby parking area, he released the victim and fled. The Middletown police were called to the scene and the victim subsequently went to Middletown police headquarters where she gave a statement as to what had transpired.

I

The defendant’s first claim is that he was denied due process of law because the trial court allowed an unnecessarily suggestive and unreliable in-court identification procedure.

On the evening of the robbery, the victim gave the police a description of her assailant which was somewhat limited because his face was partially covered during the incident. On February 26, 1980, however, she selected the defendant’s picture from an array containing six photographs. At that time she “felt” she recognized the defendant as her assailant because of his eyes, his eyebrows and the shape of his head. She was, however, not certain of her identification. The defendant [468]*468makes no claim that the photographic identification procedure at which the victim selected his picture was unnecessarily suggestive.

At trial, on direct examination, after the victim had testified concerning her selection of the defendant’s photograph from the array, the state’s attorney asked her if she would now be able to recognize her assailant. She replied that she would. The state’s attorney then requested that the defendant stand, approach the witness and speak. Defense counsel objected to this procedure. The trial court overruled the objection and required the defendant to walk to the area of the witness stand and to recite his name, address and the alphabet.

The defendant contends that the procedure employed was unnecessarily suggestive, was conducive to misidentification, and deprived him of due process of law, despite the absence of an unnecessarily suggestive out-of-court pretrial identification procedure. The defendant does not claim that all in-court identification procedures are unnecessarily suggestive. Particularly, he does not claim that what he characterizes as the “customary” identification of an accused seated at counsel table is unnecessarily suggestive. He also conceded during argument in the trial court that he could be required to stand to be identified. The defendant argues rather that the circumstances of this in-court identification, wherein he was required to approach the victim and speak, were unnecessarily suggestive and conducive to misidentification.

We fail to see how the identification procedure employed in this case has a greater tendency to suggestiveness than the identification of an accused seated or standing at counsel table. Any one-on-one in-court identification of an accused conveys the message that the state has arrested and placed on trial a person it [469]*469believes has committed the crime. Baker v. Hocker, 496 F.2d 615, 617 (9th Cir. 1974). That is the factor that creates the element of suggestiveness, not the extra steps taken here to allow the victim to observe the defendant thoroughly before identifying him.

The United States Supreme Court has set standards as to when a pretrial identification must be excluded and under what circumstances an in-court identification that follows an impermissible pretrial identification must be excluded. See Neil v. Biggers, 409 U.S. 188, 200-201, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); Coleman v. Alabama, 399 U.S. 1, 5-6, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); Foster v. California, 394 U.S. 440, 442, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969); Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); Gilbert v. California, 388 U.S. 263, 272, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); United States v. Wade, 388 U.S. 218, 241, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The court, however, has not set any guidelines for in-court identification procedures or indicated that in-court identifications must be made in a way that is not suggestive. United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986). Generally, an in-court testimonial identification need be excluded, as violative of due process, only when it is tainted by an out-of-court identification procedure which is unnecessarily suggestive and conducive to irreparable misidentification. United States v. Domina, supra, 1368; State v. Nelson, 4 Conn. App. 514, 516, 495 A.2d 298 (1985); Fortune v. State, 549 P.2d 380, 383 (Okla. Crim. App. 1976). “The Supreme Court has not extended its exclusionary rule to in-court identification procedures that are suggestive because of the trial setting.” United States v. Domina, supra, 1369. “There is no constitutional requirement that an in-court identification confronta[470]*470tion be conducted as a lineup or be otherwise free of suggestion. An in-court testimonial identification must be excluded if it is the product of an out-of-court confrontation arranged by the state, which was unnecessarily suggestive and conducive to irreparable misidentification.” Commonwealth v. Wheeler, 3 Mass. App. 387, 391, 331 N.E.2d 815 (1975).

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Cite This Page — Counsel Stack

Bluebook (online)
512 A.2d 189, 200 Conn. 465, 1986 Conn. LEXIS 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smith-conn-1986.