State v. Willin
State v. Willin
Opinion of the Court
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. Prom the judgment entered on the verdict, the defendant has appealed to this court.
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
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 Baseetta, 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 Baseetta told him he need not be afraid because “this guy won’t know you from Adam.” Baseetta 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-eourt 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.
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, 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 (p. 608) 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
We note that the “.show-up” in the present ease 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.
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, 34 L. Ed. 2d 401 (1972)].
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.
Having carefully reviewed the “totality of the circumstances” surrounding the out-of-court iden
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 admissibility of an in-court identification following an impermissibly suggestive prior identification rather than the Biggers-Manson standard, which requires that the reliability of an out-of-court identification be weighed against the suggestiveness of the procedure used. The claim is without merit, as an examination of the special finding
The defendant’s final claims of error are directed at the court’s charge to the jury on the factors to be considered in evaluating the evidence concerning the identification of the defendant by the witness Jordan. The defendant argues that the court erred in failing to charge as requested and that the charge, as given, improperly focused upon the issue of whether the identification procedure used by the state was impermissibly suggestive, instead of upon the factors affecting the reliability of the identification itself, as set forth in Biggers.
Examination of the defendant’s request to charge, which the court failed to give, reveals that the requested instruction contains no references whatever to the Biggers guidelines. To the contrary, the emphasis of the defendant’s requested charge (as was true of the defendant’s evidence at trial) was upon the suggestiveness of the identification procedure used by the state.
Section 249 of the 1963 Practice Book provides that this court “shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered.” “The purpose of [requiring exceptions] is to alert the court to claims of error while there is still an opportunity for correction in order to avoid the ‘economic waste and increased court congestion caused by unnecessary retrials.’ ” Prystash v. Best Medium Publishing Co., 157 Conn.
We conclude, therefore, that the exception which the defendant attempted to take cannot be said to have fairly apprised the trial court of the error claimed, as required by § 249 of the Practice Book. Consequently, error cannot be predicated on this exception. Prystash v. Best Medium Publishing Co., 157 Conn. 507, 512, 254 A.2d 872 (1969).
There is no error.
Sergeant Cotter testified that the defendant, a white male with dark hair, was wearing a dark jacket and what appeared to be a white rag around Ms neek. Only under the strong artificial lights of the parking lot was it possible to determine the exact color of the defendant’s jacket, which was maroon, or that “what appeared to be a white rag or towel around his neck” was in fact a light blue towel.
The record reveals that upon the facts found the following conclusions were reached by the trial court.
“26. The witness Michael Jordan had a good and sufficient opportunity to view his assailant at the time of the assault.
“27. The witness Michael Jordan viewed his assailant at dose range and in adequate lighting.
“28. The description of his attacker related by Jordan to police accurately corresponded with the defendant’s appearance at the time.
“29. The length of time between the assault and the identification of the defendant by Michael Jordan was minimal, being in all no more than ten minutes.
“30. The witness Michael Jordan was positive in his identification of the defendant both at the parking lot following the occurrence and in court at the time of trial.”
“Your Honor, I would take exception to your Honor’s failure to charge in total, our first request to charge, even though one was lesser than the other, because it seems to me that it was very important for the jury to reeognize that among the problems in the identification procedures which caused our Supreme Court to make the statement it did, as the circumstances not only that surrounded the identification initially, by the witness involved with the police, but also the circumstances with which the witness himself had the opportunity to make an identification, and the way in which your Honor left it, I had the feeling, would lead the jury to believe that if the identification were not effected by the — in any way by the police suggestions, it still is okay.”
Concurring Opinion
(concurring). I cannot agree with the conclusion of the majority that the identification procedure employed by the state in the present ease was not unnecessarily suggestive.
In my view, the identification procedure used in the present case was at least as suggestive as that which we criticized in Middleton. Although the defendant apparently was not, as in Middleton, wearing handcuffs at the time of the confrontation, he was shown to the victim while seated in the rear seat of a locked police cruiser behind a screen in the car where suspects usually are detained while being transported. Prior to viewing the accused, the victim was told by one police officer that the police had found someone who fit the description given; and, according to the victim’s own testimony, one of his coaches “probably” told him that “they think they got him.” In addition, the victim admitted under cross-examination at the pretrial identifica
The procedure employed in the present case was, in view of the available facts, also unnecessary because there was no emergency or exigent circumstance justifying such a procedure. See Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199.
In Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199, the aecused was brought to a hospital where the victim’s wife, also wounded in the assault, was a patient. The witness was the only person who could possibly exonerate the accused and no one knew how long she might live. Since the witness was unable to visit the poliee station for a lineup, the court considered the immediate hospital confrontation “imperative.” Id., 302.
Reference
- Full Case Name
- State of Connecticut v. John Willin
- Cited By
- 19 cases
- Status
- Published