6 Conn. App. 15 | Conn. App. Ct. | 1986
The defendant was convicted, after a trial to a jury, of sexual assault in the third degree in violation of General Statutes § 53a-72a. He appeals the conviction claiming that the trial court erred in denying, in part, his motion to exclude evidence of prior convictions and in denying his motion to suppress evidence of the victim’s and a witness’ out-of-court identifications of him. We conclude that neither of these claims has merit, and accordingly find no error.
The victim and the witness gave the police certain information about the assailant’s car. On the basis of this information, the police went to the defendant’s father’s home and asked the defendant to accompany them to headquarters. The witness and the victim, who had gone to the station to give the police a statement concerning the incident, both identified the defendant as the assailant. At trial, the victim and the witness made in-court identifications of the defendant, and the state introduced evidence of their out-of-court identifications.
Prior to the start of evidence, defendant’s counsel made an oral motion in limine to prevent the state from introducing evidence of the defendant’s 1982 felony convictions for sexual assault in the first degree and for kidnapping in the second degree.
The defendant first claims error in the trial court’s refusal to prohibit the state from admitting evidence of his conviction for kidnapping. He contends that the court erred in so ruling because the prejudice from admitting the evidence would have far outweighed its probative value. The defendant argues that this error was harmful, even though the evidence was not admitted, because the threat that it would be admitted deterred him from testifying.
The defendant did not, as mentioned above, except to the court’s decision to allow the state to admit the evidence. Under Practice Book § 288 “[ejvidentiary rulings ordinarily must be preserved for appellate review by an exception. State v. Hoffler, 174 Conn. 452, 461, 389 A.2d 1257 (1978). ‘The purpose of requiring an attorney to except is not merely formal. An exception serves the important function of alerting the trial court to error while there is time to correct it without ordering a retrial.’ State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984).” State v. Jackson, 3 Conn. App. 132, 135, 485 A.2d 934 (1985). The defendant’s failure to except or to seek review under the doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), thus bars consideration of the merits of this claim.
“[T]he use of out-of-court police identification procedures may give rise to a claimed violation of due process of law if the conduct of the procedure in a given instance was ‘unnecessarily suggestive and conducive to irreparable mistaken identification . . . . ’ ” State v. Hafner, 168 Conn. 230, 235, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975), quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Police procedures are suggestive where the circumstances surrounding the identification indicate “to the victim that she should positively identify the defendant.” State v. Gordon, 185 Conn. 402, 414, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982).
In this case, different methods were used to obtain the victim’s identification and the witness’ identification. The witness gave uncontroverted testimony that he identified the defendant spontaneously as the defendant entered the police station. In a factually similar case, our Supreme Court held that an accidental con
The trial court did err in ruling that the procedure used to obtain the victim’s identification was not suggestive. The victim testified that she was told by a police officer that she was being taken to view a suspect. She was then shown the defendant, who was the only individual in the room not wearing a policé uniform. Our Supreme Court has held that such one-on-one confrontations are suggestive. State v. Gordon, supra, 414; State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976).
The state concedes on appeal that the “show-up” was suggestive, but claims that the defendant has not met his burden of showing that the procedure was also
The defendant elicited testimony from three officers at the hearing on his motion to suppress. All were questioned extensively as to why no photographic array or lineup was conducted. One officer testified that he had no memory of what procedure was used or why. Another testified that no lineup was attempted because the police already had evidence, independent of the victim’s identification, that could link the defendant to the crime. That same officer testified that he knew of no reason why a lineup could not have been done the next day. The investigating officer testified that neither a photographic array nor a lineup was arranged because the lateness of the hour made the alternative procedures impossible.
Given the nature of the evidence presented at the suppression hearing, we cannot hold that the “show-up” was necessary. While there was testimony that alternatives were not available that night, there is no indication that there was a special need to have an immediate identification made. The investigating offi
“Our determination that the pretrial show-up was unnecessarily suggestive does not end our inquiry into whether the victim’s identification of the defendant at the show-up was admissible at trial. The second prong of the . . . test is reliability. . . . [W]e must consider whether the ‘totality of the circumstances’ rendered the identification unreliable. State v. Packard, [184 Conn. 258, 265-66, 439 A.2d 983 (1981)]; State v. Theriault, [182 Conn. 366, 373, 438 A.2d 432 (1980)].” State v. Gordon, supra, 415; State v. Nelson, 4 Conn. App. 514, 517, 495 A.2d 298 (1985). The factors to consider in determining whether an identification is reliable despite the use of a suggestive procedure are as follows: the length of time the witness had to view the individual; the conditions, including distance and lighting, under which the witness viewed the individual; the witness’ degree of attention during the time he viewed the individual; the time between the incident and the identification; the accuracy of the description given to the police by the witness; and the witness’ confidence
The trial court determined that the identification was, under the totality of the circumstances, reliable. While we recognize that this court must “examine the legal question of reliability with exceptionally close scrutiny and defer less than we normally do to the related fact finding of the trial court”; State v. Gordon, supra, 416; we find that the trial court’s conclusion as to reliability was correct. The defendant concedes that the degree of certainty displayed by the victim and the length of time between the crime and the confrontation indicate reliability. The other factors similarly indicate reliability. The victim testified that the areas where she viewed her assailant were main streets and that they were well lit by street lights. She testified that she looked at her assailant twice while he was in his car, once from a distance of approximately one car width and once from a distance of approximately two car widths. She saw him again from approximately an arm’s length when he assaulted her. While she saw him only briefly, she looked directly at him. All these factors, when taken together, show that the court was correct in concluding that, under the totality of the circumstances, the identification was reliable.
There is no error.
Just before trial, the defendant had filed a written motion in limine in which he sought to exclude evidence of prior convictions for sexual assault and for burglary. That motion was denied.
The defendant’s previous exceptions to the court’s rulings on his motion in limine did not preserve this claim of error. “When the court made its ultimate ruling, ‘the defendant could then have reminded the court of his previous exception . . . and reiterated his exception if he found the court’s
The Supreme Court reached this conclusion even though the witness saw the defendant outside police headquarters, in handcuffs, in the custody of two officers who the witness knew were investigating the incident.
Our Supreme Court has repeatedly emphasized that “[a] defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure. State v. Vass, [191 Conn. 604, 608, 469 A.2d 767 (1983)]; State v. McKnight, [191 Conn. 564, 570, 469 A.2d 397 (1983)]; State v. Kinsey, 173 Conn. 344, 345-46, 377 A.2d 1095 (1977).” State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984).
If the police already had probable cause to arrest the defendant, an issue which we do not address, then the need to obtain an identification immediately was far less compelling.
See State v. Brown, 187 Conn. 602, 447 A.2d 734 (1982).
In one line of his brief, the defendant also asserted that the in-court identifications were tainted by the pretrial identifications. We need not consider this claim because “[assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned . . . . ” Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982). We note, however, that this claim is disposed of by our decision on the validity of the pretrial identifications. In the absence of a tainted pretrial identification, the state is not required to show an independent basis for the in-court identification. State v. Guertin, 190 Conn. 440, 459, 461 A.2d 963 (1983).