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State v. Liptak

Court of Appeals of Connecticut

April 17, 1990

STATE of Connecticut
Raymond LIPTAK.

Page 324

Argued Oct. 19, 1989.

Certification Denied May 23, 1990.

Page 325

Francis T. Mandacini, with whom, on the brief, was James Ruane, Bridgeport, for appellant (defendant).

Mary H. Lesser, Deputy Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., Stephen Sedensky, Asst. State's Atty., and Maria A. Kahn, legal intern, for appellee (state).

Before DUPONT, C.J., and BORDEN and LAVERY, JJ.

[21 Conn.App. 249] LAVERY, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the third degree in violation of General Statutes § 53a-136. [1] He claims that the trial court erred (1) in failing to suppress a witness' in-court identification of the defendant after that court had suppressed an earlier police station photographic identification by the witness as unduly suggestive and unreliable, and (2) in failing to suppress the evidence procured as a result of the warrantless search and seizure of the defendant's car and its contents from his fenced-in back yard. We find no error.

[21 Conn.App. 250] I

The defendant's first claim is that the trial court, having suppressed a witness' police station photographic identification of the defendant, erred in failing to suppress the witness' subsequent in-court identification as well. The following facts that could reasonably have been found by the jury are relevant to this claim.

On the morning of February 2, 1987, at approximately 10:15, the witness, Ronald Tortora, was sitting in his car in the parking lot of Mechanics and Farmers Bank. Something caught his eye in the rear view mirror. Looking in the mirror, he saw an elderly woman being mugged. For six seconds he saw the profile of the perpetrator, a man with a beard wearing very large, rounded, dark tinted sunglasses and a gray sweatshirt with the hood up. The assailant was struggling with the elderly woman for her pocketbook. Tortora then turned around and saw the victim lying on the ground, and the assailant running away toward the street. The entire duration of his observations, both through the rear view mirror and when he turned his head around, was approximately ten seconds.

Tortora turned back around to start his car in order to chase the assailant, who was out of his sight during the ten or fifteen seconds it took him to pull his own car into the street. With his car facing up William Street, Tortora looked for someone running or walking away and saw no one, but noted a maroon car travelling ahead of him at the speed limit on William Street. He decided to follow it to identify the driver. Tortora did not see where the car was coming from. He followed the car for two blocks with no other car in front of him. The car stopped at two stop signs. Both times, the driver of the car turned his head from side to side, enabling Tortora to view his profile. Although [21 Conn.App. 251] the driver was not wearing a sweatshirt, his profile, nose, beard and sunglasses matched those Tortora had seen at the bank, and he was certain that the driver was the assailant.

After viewing the assailant at the second stop sign, Tortora returned to the bank. He spoke to the victim, who told him that the assailant got into a red, late model car. He also described the assailant to the police and gave them the description of the maroon car and its license plate. Later that day, the police called Tortora to the police station to view a photographic array that included the defendant's picture. At the police station, the police asked him to take a walk through the building. He was taken through one room where he saw from the back a profile of a long haired, bearded man sitting down. The police asked him if he saw anyone that looked familiar. He

Page 326

was then shown a pair of sunglasses that he heard the police say came from the car of the person arrested. He then identified the defendant from a photographic array of six photographs.

The defendant moved to suppress both the police station identification and the subsequent in-court identification. The trial court suppressed the identification at the police station but allowed the in-court identification.

The key to the admissibility of any identification evidence is its reliability. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); State v. Piskorski, 177 Conn. 677, 742, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979). When a court decides whether a witness who made an earlier tainted identification may, nonetheless, identify the defendant at trial, the court must determine whether the earlier identification procedure "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, [21 Conn.App. 252] 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); see also State v. Gold, 180 Conn. 619, 655, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980). This is so because such "likelihood of irreparable misidentification" would destroy the reliability of a later, in-court identification.

The court must first determine whether the earlier identification was in fact impermissibly suggestive. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The "corrupting effect of the suggestive identification"; Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253; must then be considered in light of the " 'totality of the circumstances' "; id., at 113, 97 S.Ct. at 2252; that is, it must be weighed against several factors, including "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Id., at 114, 97 S.Ct. at 2253. The court ...

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