State v. LeeState v. Lee
- Reporters:
- , ,
- Before:
- Parskey
After a trial to a jury the defendant was convicted of burglary in the third degree in violation of
On December 10, 1974, Prank Salamon was residing with his parents in a two-story, one-family home located in a rural area of Cantоn. About 11 a.m., as Salamon was awakening in his second floor bedroom, he heard a noise downstairs and the family dog barldng. As he started downstairs he encountered a black male, whom he later identified as the defendant, coming up the stairs, who pulled out a poeketknifе with a three- or four-inch blade, pointed it at. Salamon, and ordered him to return to his bedroom. Salamon was directed to sit on the bed while the black male took things from drawers and cabinets and put them in a pillow case and, while he was in Salamon’s bedroom, a white mаle wearing a scarf that covered the lower part of his face entered. Thereafter, the black male left the room and, about five minutes later, he returned and remained in the room for about another five minutes. While both intruders were together in the bedroоm, the white male tied Salamon on the bed with a lamp cord, and a sheet was tied around his head,
I
The defendant assigns error in the court’s failure to еxclude Salamon’s in-court identification of the defendant as the black male who accosted him on the stairway. His claim is that this identification was tainted by a previous out-of-court identification made under circumstances that violated his rights under the sixth and fourteenth amendments to the constitution of the United States. Certain additional facts are pertinent to this inquiry. After Salamon reported the incident, he gave a description of both the white and black males to Sergeants Stephen Cudworth and John LaDucer of the Canton poliсe department. He described the white male as being five feet, ten inches in height, of medium build, having black hair of short length and wearing a scarf over his face. He described the black male as approximately six feet in height, of medium build, having black hair in a short Afro style and no facial hair. About an hour after the crime, Salamon was taken to Hartford police headquarters where he examined five mug shots of white males. Before he looked at the photographs he told Sergeant Cud-worth that the white man who robbed him had a broad forehead with a high hairline. After he examined the photographs, Salamon picked out one of them, Paul DeWitt, as the white male who participated in the crimes. Salamon was also shown about two hundred photographs of black males but he could not identify any оf them. Sergeant Cudworth did not ask the Hartford police department to segregate or identify the photographs of black males shown to Salamon, nor did he know whether the
Sergeant LaDucer telеphoned Salamon, told him about DeWitt’s arrest with a black male, and requested him to come to Middletown the next day to see if he could identify the black male in a line-up. Later the Canton police learned that a line-up could not be arranged. Upon learning that a line-up would not take place, Sergeant LaDucer decided he would locate the courtroom where DeWitt and Lee were and would ask Salamon if he could identify them. On January 29, 1975, Sergeant LaDucer and a detective from the Simsbury police deрartment drove Salamon to the Court of Common Pleas in Middletown. While the police and Salamon were walking to the court liaison officer’s room, they fortuitously encountered DeWitt and the defendant in the second-floor hallway. At the time, DeWitt and the defendant were handcuffed and were standing beside a state police officer. All of the people in the hallway at the time, other than the defendant, were white. After observing DeWitt and the defendant for about five to ten minutes, Salamon told Sergeant LaDucer that they were the pair who had been in his house. When he identified the defendant to Sergeant LaDucer, Salamon volunteered the information that the defendant had grown a beard since the date of the robbery.
The state represented to the court, at the hearing on the motion to suppress the hallway identification,
An in-court identification of an accused in the course of a trial is subject to challenge in any case where a pretrial corporeal identification has ocсurred without the presence of counsel at a critical stage of a criminal prosecution. This is so whether the pretrial identification is used to corroborate the in-court identification;
Gilbert
v.
California,
388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); or not.
United States
v.
Wade,
388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The in-court identification is subject to challenge regardless of whеther the pretrial corporeal identification without the presence of counsel is in the form of a line-up, a show-up or a one-on-one identification.
Moore
v.
Illinois,
434 U.S. 220, 98 S. Ct. 458, 54 L. Ed. 2d 424 (1977). The in-court identification may be challenged where the pretrial corporeal identification occurred “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”
Kirby
v.
Illinois,
406 U.S. 682, 689, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972). To overcome the challenge,
For the stаte to meet its substantial burden of persuasion it must come forward with more than a bare preponderance of evidence. Schneiderman v. United States, 320 U.S. 118, 125, 63 S. Ct. 1333, 87 L. Ed. 1796 (1943). The evidence must be such as to induce in the mind of the trier “a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” Dacey v. Connecticut Bar Assn., 170 Conn. 520, 537, 368 A.2d 125 (1976); McCormick, Evidence (2d Ed.) § 340.
The trial court’s conclusion that the state had established by clear and convincing evidence that Salamon’s in-eourt identification was based on an independent recollection is amply supported by the
We need not dwell on the defendant’s further claim that the “corridor confrontation” was so
II
The defendant also asserts that there was insufficient evidence to support his conviction on the kidnapping charge. A person is guilty of kidnapping in the second degree under
We considered the defendant’s argument in State v. Dubina, 164 Conn. 95, 318 A.2d 95 (1972), and observed (p. 100) that whether the detention 3 was merely incidental to another crime was, under appropriate instructions from the court, a question for the jury. In the present case, the trial court so charged the jury without a request. More recently, in State v. Chetcuti, 173 Conn. 165, 377 A.2d 263 (1977), we again reviewed the relationship of the kidnapping statute; § 53a-92 (a) (2) (A); to other associated crimes (assault and sexual contact). We there noted (p. 170) that the legislature had seen fit not to merge the offense of kidnapрing with other felonies, nor to impose any time requirements for restraint, nor distance requirements for asportation, to constitute the crime of kidnapping.
Kidnapping requires that there be an abduction. Abduction means restraint with the intent to prevent liberation. Whether in a given case the restraint is accompanied by the requisite intent, so as to constitute kidnapping, or is merely incidental to another felony, is ordinarily a question for the jury.
State
v.
Chetcuti,
supra, 170;
State
v.
Dubina,
In this case, the facts — the movement of Salamon at the point of a knife from the stairway back to his bedroom, his detention in the bedroom for about fifteen minutes during the course of the robbery, and his being left lying on the bed in a prone position with a sheet covering his face and his hands tied behind his back so as to require an additional ten minutes for Salamon to extricаte himself — were sufficient to permit the jury to find the restraint and intent necessary to constitute kidnapping in the second degree. We cannot say, as a matter of law, that the restraint was only incidental to the robbery.
There is no error.
In this opinion the other judges concurred.
Notes
Although the defendant seeks to correct the finding, we conclude from an examination of the appendix that no additions or corrections aro warranted. Some of the requested additions are implicit in the finding. State v. Warren, 169 Conn. 207, 214, 363 A.2d 91 (1975). Others are either disputed or not admitted or would not affect the result. Aillon v. State, 168 Conn. 541, 542, 363 A.2d 49 (1975). Those findings sought to be deleted are substantially supported by the evidence printed in the appendix.
The relationship of kidnapping to other crimes is discussed in annot., 43 A.L.R.3d 699.
In
State
v.
Dubina,
164 Conn. 95, 318 A.2d 95 (1972), the kidnapping statute;