*1 Raymond Williams State Connecticut Longo J., Loiselle, C. Speziale, Js. House, Bogdanski, Argued April 6 decision released October *2 Jersey bar, of the New and,
Herbert R. Scott (defendant). Ewing, appellant William J. for the attorney, Hurley, state’s D. Michael assistant Satti, Robert state’s whom, brief, with on the was C. (state). attorney, appellee for the by was indicted a C. J. The defendant House, grand jury County in November in New London robbery in for the crime of the second degree (a) (2) § in violation of 53a-135 of the Gen- being persistent dangerous and with eral Statutes a felony by (a). § as defined 53a-40 offender, County attorney filed state’s for New London also charging two an information the defendant with degree larceny in counts of in the second violation alleging §of defendant stole two 53a-123, that the September of the occur- 24, 1972, cars on the date robbery gave which indictment for rences rise to the degree. tried the second The defendant was jury guilty robbery a and found the second larceny degree in the and two counts of degree. jury after the second On March charges, their on those had returned verdict put plea part defendant was on two of the indict- charging being persistent him ment dan- gerous felony pleaded guilty offender. He and on March term of 26, 1974, was sentenced to a not less years than twelve nor more than life on the indict- ment and not less than one nor more three than years on each count of the information.
At the trial, evidence was introduced from which jury reasonably following could have found the September p.m., facts: On 24, 1972, around present people four Ed’s Restau- were at Sailor Godomsky, Stonington: rant Chester J. Dono- waitress; Susan and John owner; Hoelzel, Two Wilcox, van David two dishwashers. being defendant, armed one of them men, tied hands restaurant, entered rear two and ushered them into dishwashers men where one of the main room of the restaurant Godomsky Mrs. Hoelzel that announced to Godomsky holdup. were Hoelzel was a Mrs. up lie *3 four to face- tied and all victims were forced robbing perpetrators, down on the floor. The after departed, only to the the restaurant, victims and keys to return short obtain the a time later to Godomsky’s time, Neil McKenzie car. About this in the Thomson at restaurant and Carol arrived Volkswagen belonging Thomson’s to Carol out of mother. The two robbers ordered them they bound, into were car and the restaurant where The robbers then floor robbed. forced and Volkswagen, abandoning the in fled the scene Mercury Cougar they The in had which arrived. belong- Cougar was found various items to contain family, ing including an and his defendant Cougar bearing picture. The identification card registered subsequently found to have been Jack W. Roach in Rhode and the Massachu- Island, plates were found to have setts license on the car been 1965 Buick Wild- issued to Willie Smith for a Cougar reported stolen. The cat. The been as had Volkswagen London. was later recovered New principal defenses offered the defendant supported by testimony were an alibi of defense witnesses that he at work Massachusetts had been robbery testimony at the time he purchased Cougar had from Willie Smith. assigned
The defendant has numerous errors larceny robbery and of his trial on the the conduct challenged legality charges has charge plea guilty acceptance of his court’s persistent dangerous felony being offender. (a), persistent § that 53a-40 He also has claimed felony is unconstitutional statute, offender Particularly, pressed applied he has a claim to him. to exclude the iden- in the court’s refusal error Godomsky, testimony John of Chester tification which evidence Hoelzel, Donovan and Susan objections exceptions and admitted over his testimony suppress that were after his motions denied. give
The first witness to against Godomsky, the defendant was the owner He made an out-of-court restaurant. had photographs identification based on and had also He made in-court identification at the trial. an testified that he first saw the defendant when two robbers walked the dishwashers into *4 holdup. He was restaurant and announced the standing up with and face-to-face the defendant very got good him. He observed his a look at also frequently face defendant came to where when the lying he on the floor. The defendant was during the near him for fifteen minutes area about robbery. Godomsky the described the defendant as a black well-dressed with horn-rimmed male, — glasses Shortly a clean-cut individual. after robbery, police Cougar the the examined the which parking lot had been abandoned in the restaurant imprinted in it and found an identification card police photograph with of the defendant. The a Godomsky them showed the I.D. card and he told picture like the man that the on the card looked the that He testified at trial him. who had robbed police station called to the later time he was at a photographs eight group he of where was shown the them of robbers. if of were and was asked photographs Among defendant, the the were two enlargement of the I.D. card one of which was an showing writing paper placed across the wearing glasses. horn-rimmed the defendant picked enlarged Godomsky I.D. but card, out the photograph identify the the other defend- did not photo- among eight In that shown to him. ant glasses. wearing graph He was not the defendant photograph he which that he saw the stated when blowup of the he that it was a identified realized previously he stated card he seen I.D. had thought picked “I I it further: because still he He also had seen the same man.” testified grand jury hearing before the the defendant at he trial, short time before trial and that, being happened into the the defendant led see guard recognized Fol- him. courthouse under Godomsky lowing outside examination jury’s hearing, defendant moved the court concerning pre- Godomsky’s testimony exclude court trial and in-court identification. The denied jury, presence motion, and, Godom- pretrial sky testified to the identification and also identification of the made an in-court defendant. one the dishwashers Donovan, John who was up by robbers, tied also identified Williams as holdup one of the men. He testified that he was approached the kitchen when defendant him *5 lighting with in his a revolver hand. The in the kitchen and was excellent he was face-to-face with only away. good inches He had the defendant, a up look at the before he was tied defendant 550 good him in
had another look at the restaurant from a distance of one foot when the man crossed good front himof and another look at him in the gun, ques- restaurant with Williams, when was tioning people. two other At that Donovan time, profile. was six feet from Williams and could see his day He later saw Williams in court on the grand jury hearing. He also made in-court an identification of Williams at the trial as one robbery. men who committed the Another witness, Susan also Hoelzel, made an in-court identification of the defendant at the trial. She a waitress at the restaurant and first gun, walking observed the defendant, lighting bright towards her. The and she could clearly. robbery, see him Three weeks after the photographs by she had been shown several police. thought She one looked familiar but could not tell for certain if he was the defendant because picture wearing glasses. the man in the was not police, however, She told the that he looked like up. positive the man who had held them She was in her in-court identification of Williams as one the robbers. involving procedures
Cases
have
multiplied both before this court
before the
Supreme
United States
Court since
1967 deci
sions of
Wade,
the latter court in United
v.
States
388 U.S.
18
218,
1926,
1149;
87 S. Ct.
L. Ed. 2d
Gilbert v.
388
California,
U.S.
87 S. Ct.
L.
Denno,
Ed. 2d
v.
Stovall
U.S.
293, 87
L.
1967, 18
S. Ct.
Ed. 2d 1199. See decisions
Supreme
of the United
States
Court
Simmons
v. United
U.S.
S. Ct. 967,
L. Ed. 2d
Foster
U.S.
California,
*6
551
Biggers,
v.
Neil
The defendant most
asserts that
procedure by
G-odomsky
which the witness
iden-
photographs
tified him from
one
the robbers
impermissibly
suggestive
therefore,
and,
should have been excluded. He concedes, as indeed
police
showing
he
must,
the action of the
Godomsky shortly
robbery
after the
Williams’ iden-
impressed
photograph
tification card
wearing
glasses
awas
which he was
horn-rimmed
legitimate procedure.
v. United
See Simmons
supra,
supra;
Middleton,
v.
State
State
438. He
267 A.2d
Mallette,
Conn.
improper
for the
claims that
nevertheless
enlargement
police
of the small
later to include an
photograph
other
identification card
with several
photographs,
including
defendant
one
Godomsky
glasses,
wearing
which
were shown
purposes.
con-
for
The trial court
argu-
hearing
evidence and
cluded after
extensive
procedure
impermissibly
ment that the
used was not
totality
suggestive considering
of the circum-
*8
ruling
of the
and we find
error
the
stances,
no
precise
Adopting the
lan-
court and its conclusion.
guage
supra,
Brathwaite,
court in
Manson v.
“Surely,
say
all the
that under
2254:
we cannot
very
of this case there is ‘a
substan-
circumstances
irreparable misidentification.’
tial
likelihood of
[390
88
377, 384,
United States
U.S.
Simmons v.
point,
1247].
L.
of that
19 Ed. 2d
Short
S. Ct. 967,
weigh.
jury
for
to
We are
such
is
evidence
judgment
rely upon
good
sense
content
juries,
element
for evidence with some
of American
customary grist
for the
of untrustworthiness
is
they
susceptible
jury
mill.
are
so
Juries
weight
intelligently
of iden-
measure
cannot
questionable
some
that has
tification
propriety
remained as to the
If
doubt
feature.”
Godomsky’s pretrial
ruling as to
of the court’s
photographic
under
cir-
identification, was,
proper
by harmless
rendered
cumstances,
in-court iden-
and certain
his definite
admission of
inquiry
“two-pronged”
as out-
under the
tification
345 A.2d
Smith,
165 Conn.
in State
lined
288
356,
348,
Oliver, 161 Conn.
State v.
41; and
(p. 685): “[A] wit-
in Smith
we noted
A.2d 81. As
may, despite any irregularity
ness
illegality
or
procedure
photographs,
of identification from
make
purged
an in-court identification if it is
pretrial
procedure by
taint of the defective
upon
establishment of the fact that it is based
dis-
independent
associated and
observation.”
by
One other claim of error asserted
the defend-
ant merits some extended discussion.
It is that he
knowingly
intelligently
right
did not
waive his
by jury
part
a trial
on
two of the indictment
pleading guilty
being
persistent dangerous
felony
(a)
§
offender as defined in
53a-40
being
person
prior
General Statutes,
who
robbery charged
part
commission of the crime of
one of the indictment had been convicted and
imprisoned
year
for more than one
in Massachu-
setts for armed assault with intent
to rob and
robbing
stealing
advancing
from another.
In
upon
this
holding
claim,
defendant relies
such cases as North Carolina v.
Alford,
U.S.
Brady
25,
S. Ct.
L. Ed.
2d
v. United
U.S.
90 S. Ct.
Boykin
L. Ed. 2d 747; and
v. Alabama,
*9
238, 242, 89 S. Ct.
In
1709,
After the was entered and before accepted attorney fully explained was the state’s charge, to the court the factual basis for the which was the defendant’s 1963 conviction in Massachu- robbery setts of the crime of armed for which defendant eight received a sentence of not less than years nor more than ten to the Massachusetts cor- Walpole. copy rectional at institute A certified the record of that conviction was admitted as an inquiries by exhibit. In answer to court, guilty defendant stated that he had discussed his plea with his counsel, that he was satisfied with his by plead- counsel’s advice, that he understood that ing guilty up giving rights he was his to have the attorney present state’s evidence, to have a trial, opportunity and to have an for his counsel to cross- appropriate examine the witnesses, that he was waiving rights against self-incrimination and admitting guilty that he had been found the 1963 offense in Massachusetts, that he was the Raymond same guilty by Williams who was found the court in Massachusetts 1963, and that there nothing say.2 further he wished to certainly
On this record, there is no merit to the present defendant’s contention that the court erred 2The defendant has briefed a claim that he was confused happening, what was relying primarily on the fact that after colloquy printed which we have one, supra, footnote he asked the court: going “Is there proceeding be a court regards plea to this guilty? In words, other going is there to be a trial?” Thereupon clearly the court explained the situation as follows: “The Court: No. pleading guilty You are today. It eliminates necessity of a trial. Silverberg: Mr. part On the B. part The Court: portion. On the B In words, other what happens here, Williams, Mr. by your is that pleading guilty to the part B you information necessity have eliminated the of a second
557 plea part accepting guilty Ms to the second passing, and that indictment, note, we also during twenty-five days intervening between guilty plea imposition his of sentence guilty defendant made no plea. his move withdraw present appeal It not until the was filed was that the defendant for the first time made the claim plea voluntarily intelligently Ms that entered. remaining
The defendant’s of error do not claims require extended discussion. His attack on the con — stitutionality (a) dangerous felony §of 53a-40 — groundless. offender statute is As brief his necessity constitutionality persis admits, upheld. long tent offender statutes has been See Spencer v. Texas, 385 554, U.S. 87 Ct. 648, S. rehearing L. Ed. 2d 606, denied, 386 969, U.S. S. Ct. 18 L. 125; Ed. 2d Graham v. West Virginia, 224 U.S. 32 S. Ed. Ct. 56 L. and the decisions of Rose, this court in State v. Grady, Conn. 623, 362 A.2d 813; State v. Conn. 26, 35, 211 A.2d Mead, State v. 130 Conn. 106, 109, A.2d 273. Now, trial. the second trial proceeding would be a that would take probably twenty or minutes half an All hour. Mr. O’Brien [state’s attorney] would bring have to do is proper down the witnesses from the state of testify you Massachusetts to were tried back in 1963. complete That there was a finding trial. This was the court and it would test the you records Do court. understand that? Right. The Defendant: I understand that. Now, you The Court: Raymond are the same Williams that guilty
found by this eourt in Massachusetts 1963? Yes, The Defendant: I am. The Court: You anything are. Is you there else wish to ask or add at this time? lime, Defendant: Not at this no, your Honor. right.” The Court: All
.As have that “this incident should claim sen incident” and “the isolated been viewed an given circumstances,” under tence was excessive *12 proper only exer not review the this court will imposing a in sentence court’s discretion cise of the by the statute for is the limits fixed which within Kyles, charged; 438, 169 Conn. see v. offense State supra, State Rose, 638; v. 363 A.2d State 444, 97; A.2d 610, 885; 102 LaPorta, 612, v. 140 Conn. 890; 97 A.2d Allen, 39, Conn. v. Van 140 44, State 744; 43 A.2d 276, 278, 132 Conn. Horton, State v. present appear claim that the but it does not of at the time sentence. to the trial court ever made Malley, § v. Book and State 652; See Practice Evans, Conn. v. State 292; 355 A.2d 386, 379, cited A.2d and cases 576; 165 Conn. no record whatso Furthermore, we have therein. opinion upon predicate the as to which to an ever proper severity so. if it to do the sentence were of sentencing transcript of from the the We do note according proceedings state’s to remarks of the activity attorney prior defend criminal suggested than much more extensive ant was The defend in defendant’s brief. the recitals by anything unsupported ant’s contention, “ clemency simply appeal ‘is an for made record, discretionary jurisdiction a court which no has ” Chuchelow, 323, v. Conn. matter.’ State McNally, 22 A.2d see v. Conn. 324, 780; State A.2d 162. 598,603, 211
The defendant has briefed two claims of error charge jury. in the court’s to the The first is that charge adequately knowl- the court failed to edge on the larceny charged element of as in the first count larceny the information which related Mercury Cougar, and the second is that charge sufficiently respect court did not to the jury factors which the should consider determin- ing credibility be accorded the dispositive witnesses. answer to claims those exception of error is that the took defendant no charge given. Book Practice v. §249; State Lockman, 169 Conn. Neal 124, A.2d 116, v. Shiels, 166 Conn. 347 A.2d State Magoon, 156 Conn. 240 A.2d 853. any exception charge,
In the absence of ordinarily give we would no further consideration present Appellate to the defendant’s attack on it. counsels’ criticism of trial for counsel, however, “inexplicable object charge failure” to *13 to the prompted has us to examine it. error We find no charge larceny. properly as to The court portion applicable read the to the statutes jury, explained meaning as it statutes Cougar related to the theft of the sub read eight § section of 53a-119 of the General Statutes jury entirety. provides in its This subsection reception property that of stolen constitutes larceny “knowing the crime of when it is received probably believing that it has been stolen or that probably possession it has been Proof stolen.” recently property by stolen not satisfac itself, torily explained, support can conviction lar ceny. v. State Palkimas, 153 Conn. 219 A.2d 555, 220; Huot, see State v. 463, 170 365 1144. Conn. A.2d jury There was sufficient for evidence to find by inference that the defendant knew that Cougar was stolen. v. Schoenbneelt, See State 171 126, Pambianchi, Conn. 119, A.2d State v. 543, Conn. 695. The court also A.2d properly charged adequately jury as to determining credibility their function of wit- given testimony. weight be to their nesses and the Appellate trial is not criticism of counsel counsels’ warranted. to the defendant’s no merit whatsoever
We find permitting a court the court erred claim that stenographer had earlier different from the one who it to read taken down certain they requested jury that it read back. be after had only nothing in which would the record Not is there any way reading inaccurate was in that the indicate objection court. As made to the trial no but again, our rules do have noted time we fail to permit criminal in a case a defendant occurring during object trial until to matters be or even con for corrected is too late them proves unsatisfac then, if the outcome sidered and appeal. tory, time them for the first on an to raise 166 Conn. Johnson, v. §226; Practice Book State Taylor, 352 A.2d State 439, 445, denied, cert. A.2d Conn. 442. 16 L. Ed. 2d 86 S. Ct. fully applicable rule is to the claim The same in the the defend- when absence of the court erred *14 jury suspend permitted to ant and counsel go out to to unescorted deliberations and their explicit giving instruc- them lunch. It did so after to discuss case their conduct and not tions permit anyone no talk them. There was or jury sequestered requirement when that the be no lunch there was com- the court reconvened after Although objection plaint mistrial. or or motion for in brief what discussed the defendant has impropriety prejudice the defendant could or nothing possible, is there whatsoever have been indicate occurred or resulted. the record to that dis- of the court’s We find no error this exercise cretion.
There is no error. opinion In con- this Js., Speziale, Loiselle curred. (dissenting). agree I do not J. Longo,
majority testimony that identification Chester (lodomsky properly evidence. was admitted into particularly cru- This identification was principal cial to the defendant’s since his conviction defense his claim in Massa- that he at work robbery. chusetts at the time of the argues procedure by The defendant which that by photograph the defendant’s was identified G-odomsky suggestive deny him was so as to due process according of law enunciated standard Supreme Court in Simmons v. United 390 U.S. 88 S. Ct. 19 L. Ed. 2d where (p. 384) court discussed “the initial hazards of by photograph.” identification Hafner, See State v. 168 Conn. A.2d Smith, State v. Conn. 680, 685, 345 A.2d Oliver, State v. Conn. 85, 91, 273 A.2d 867, cert. denied, 946, 91 S. Ct. 1637, L. Ed. 2d 115. The Simmons (p. 384) photographic court noted procedure widely effectively “has been used standpoint criminal law enforcement, from the both apprehending sparing offenders and of innocent suspects ignominy by allowing eye of arrest through scrutiny witnesses to exonerate them photographs.” supra, We noted in State v. Smith, “Application 684: of the Simmons test does alter reliability *15 properly settled rule that the of eyewitness like the credi- identification,
admitted given of weight bility be to recog- jury but determine the is for witness, leading procedures the cases, in some that, nizes may suggestive eyewitness be so identification an constitutionally inad- the identification as to make California, Foster v. a matter of law. missible as 2d 22 L. Ed. Ct. n.2, 89 S. 394 U.S. 402.” by a two- must be tested
The defendant’s claim pronged inquiry. the court must ask whether First, impermissibly sug- procedure was the identification gestive the if it whether under so, and, second, likely produce totality circumstances it was consequently irreparable misidentification pre- require identification not be that the in-court supra, jury. States, sented to the v. United Simmons 87 S. Ct. Denno, Stovall v. supra, Smith, L. 684. 18 Ed. 2d State supra, the 383-84, In v. United Simmons problem use court the serious discussed photo- photographs, correct of even under the “most may graphic procedures” create an danger con- inherent of misidentification. The court danger stating: if will be increased tinued, “This only picture police display witness single generally individual who resembles they pictures person him he or if show saw, persons among photograph which the several way single such recurs or is some individual emphasized. Regardless mis- of how the initial . . . is thereafter identification comes the witness about, memory image photo- apt to retain person actually graph seen, rather than of lineup subsequent reducing trustworthiness of These observations or courtroom identification.”
563 body judicial supported of substantial are scholarly emphasizing unre- the inherent literature especially photographic liability eyewitnesses of testimony.1 identification signifi- Supreme dealt
The United States Court cantly eyewitness United in with 18 Wade, States v. S. Ct. (p. 228) L. Ed. The 2d 1149. Wade court cautioned: major contributing high “A factor incidence miscarriage justice from mistaken identifica- degree suggestion tion in has been inherent prosecution presents in manner which the suspect pretrial to witnesses for The identification.” (pp. 228-29) quote approval court continued Eye-Witness the assertion from Identification Wall, p. “[t]he in Criminal influence of Cases, improper suggestion upon identifying witnesses probably justice miscarriages accounts for more — single perhaps respon- than other factor it is sible for more such than errors all other factors 229): (p. combined.” As the Wade court stated “Suggestion intentionally can be created uninten- or tionally many ways.” subtle The court stated (p. 235): further “We do assume that these police procedures risks are the result of intention- ally designed prejudice an accused. Rather we they dangers assume derive from the inherent Parts comment, to Stovall: & Tapp, Pre-Trial from Wade 261; of (3d Ed.) See Iowa L. Eev. Impermissible I & II, note, “Pretrial Wall, “The “Photographic § Lower Criminal Eye-Witness Kirby,” Psychology Williams & Suggestion: Courts Crim. L. Eev. Identification Identification 121 U. Pa. L. Rev. Wigmore, The Science of Judicial Proof Identification: Bobble the Identification of Criminal Hammelmann, Evolving Limitations 479-90, Methods,” Procedures Ball,” in Criminal Identification: 545-55. The Hidden 1079; Sobel, Identification 55 Minn. L. Eev. — Brooklyn Wade Cases; on the Abuse Persuader,” “Assailing to Gilbert Parades, L. Levine 779; Eev. Gap suggestibility
eyewitness
identification and
pretrial
inherent in the context of
identification.”
particularly pertinent
this
These observations are
Grodomsky
single picture
case.
was shown
Here,
which he said “looked like” the man who had robbed
*17
blown-up copy
him.
he
Sometime later was shown a
distinguishing
of this
I.D.
same
card with
character
only partially
istics of the card
obscured from view
by piece
by
paper
tape.
blown-up
a
secured
The
significantly larger
I.D. card was
than the seven
photos
other
which was exhibited and was
distinguished by
shape.
further
its
The witness
recognized
admitted on cross-examination that he
photo
previously
as the I.D. card he had
been
identify
photo
shown. He failed to
another
among
group
defendant which was
same
photos,
distinguished
shape,
but which was not
type
size or
from the others and which
he had
previously
opportunity
seen. The
of the witness to
extremely
observe the robbers was
limited
he
since
spent
robbery
up,
most of the time of the
tied
face-
dimly-lighted
down to the
floor
a
His
restaurant.
opportunity
lack of
to observe the defendant was
reflected in contradictions in his
concern
ing
respective
size and roles of the robbers.
It
was also established on cross-examination that the
inadvertently
witness had
observed the defendant
guard being brought
under
into the courthouse
before the trial
him
and that he had seen
at the
grand jury hearing
clearly
where he identified
as the defendant.
standing
These last facts,
alone,
however, are not sufficient to exclude the identifica
testimony;
tion
State v. Duffen,
Having pretrial determined that the identification procedure impermissibly suggestive in this case was opinion I am also of the identifica- that the in-court erroneously permitted. tion was We stated State v. Smith, 165 680, 685, 41, Conn. 345A.2d that “a wit- may, despite any irregularity illegality ness or procedure photographs, of identification from purged make an in-court identification if it is pretrial procedure by the taint of the defective upon establishment of the fact that it is based dis independent associated and observation. United See States v. Wade, 1926, 388 U.S. 87 S. Ct. 218, 241, Wong 18 L. Ed. 2d Sun v. United U.S. Rudd 471, 83 S. Ct. 9 L. Ed. 2d (5th Cir.); 477 F.2d Florida, 805, 812 State v. [161 81]. Oliver Conn. 288 A.2d ‘The effort imprint must be to determine before the whether, arising procedure, from the unlawful identification already image there was such a definite in the wit rely ness’ mind that he is able on it at trial with any, out if much, assistance from its successor.’ Phipps [428 United States ex rel. v. Follette F.2d (2d Cir.), 912, 914-15 cert. denied, S. Ct. 151, L. Ed. 2d rel. United 146]; States ex (2d [461 Bisordi v. LaVallee F.2d Cir.)].” procedure employed The identification merely weight this case did more than affect the testimony. be accorded the witness’ identification procedure required Rather, its exclusion aas matter of law. See United States v. Fowler, (9th Cir.). F.2d 133 The burden rested on the state prove by convincing clear and evidence that the upon in-court identification was based the witness’ imper observation of the defendant exclusive of the missibly suggestive photo procedure. *19 supra; Wade v. United States, Mason United (D.C. Cir.). F.2d The state did not (p. 686) meet this burden. In Smith we listed as indicative of the witness’ untainted recollection of similarity the descrip defendant “the between the gave police prior tion of the defendant he to seeing police photographs the and the defendant’s physical own characteristics, the one-half hour' during [the opportunity witness] which had the and area well-lighted robber observe the during and prior physical proximity close the positiveness crime, commission of In the defendant.” identified which witness] [the give failure Godomsky’s case, present viewing before detailed of the defendant description the rob- observing of difficulty the photograph, initial hesi- the witness’ bers during crime, con- me to a defendant lead identifying tance in Smith. that reached clusion from opposite Godomsky, time the same was shown photo second suggestive in an impermissibly was presented possibility which created a substantial manner as one of the defendant Godomsky’s from stemmed of the men who robbed the restaurant from rather than his recognition picture of appearance independent memory Sep- night in the events participants identifi- Allowance of the in-court tember 1972. cation defendant by Godomsky deprived under entitled of law to which he was due process con- States to the United the fourteenth amendment California, stitution. Foster v. 402.
S. Ct. L. Ed. 2d concurred. J., In this opinion Bogdanski, S. Coburn al. et Homes, Inc., Anne et al. v. Lenox Longo Speziale, J., Loiselle, Bogdanski, Js. C. House,