State v. Williams

¶1(dissenting). I do not agree with the majority that the identification testimony of Chester (lodomsky was properly admitted into evidence. This identification testimony was particularly crucial to the defendant’s conviction since his principal defense was his claim that he was at work in Massachusetts at the time of the robbery.

¶2The defendant argues that the procedure by which the defendant’s photograph was identified by G-odomsky was so suggestive as to deny him due process of law according to the standard enunciated by the Supreme Court in Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247, where the court discussed (p. 384) “the hazards of initial identification by photograph.” See State v. Hafner, 168 Conn. 230, 362 A.2d 925; State v. Smith, 165 Conn. 680, 685, 345 A.2d 41; State v. Oliver, 160 Conn. 85, 91, 273 A.2d 867, cert. denied, 402 U.S. 946, 91 S. Ct. 1637, 29 L. Ed. 2d 115. The Simmonscourt noted (p. 384) that photographic identification procedure “has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs.” We noted in State v. Smith, supra, 684: “Application of the Simmonstest does not alter the settled rule that the reliability of properly *562admitted eyewitness identification, like the credibility and weight to be given to the testimony of any witness, is for the jury to determine but recognizes that, in some cases, the procedures leading to an eyewitness identification may be so suggestive as to make the identification constitutionally inadmissible as a matter of law. Foster v. California, 394 U.S. 440, 442 n.2, 89 S. Ct. 1127, 22 L. Ed. 2d 402.”

¶3The defendant’s claim must be tested by a two-pronged inquiry. First, the court must ask whether the identification procedure was impermissibly suggestive and, second, if it was so, whether under the totality of the circumstances it was likely to produce irreparable misidentification and consequently require that the in-court identification not be presented to the jury. Simmons v. United States, supra, 383; Stovall v. Denno, 388 U.S. 293, 301, 87 S. Ct. 1967, 18 L. Ed. 2d 1199; State v. Smith, supra, 684. In Simmons v. United States, supra, 383-84, the court discussed the serious problem that the use of photographs, even under the “most correct photographic identification procedures” may create an inherent danger of misidentification. The court continued, stating: “This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized. . . . Regardless of how the initial mis-identification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.” These observations *563are supported by a substantial body of judicial and scholarly literature emphasizing the inherent unreliability of eyewitnesses and especially photographic identification testimony.1

¶4The United States Supreme Court dealt significantly with eyewitness identification in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149. The Wadecourt (p. 228) cautioned: “A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” The court continued (pp. 228-29) to quote with approval the assertion from Wall, Eye-Witness Identification in Criminal Cases, p. 26, that “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor — perhaps it is responsible for more such errors than all other factors combined.” As the Wadecourt stated (p. 229): “Suggestion can be created intentionally or unintentionally in many subtle ways.” The court stated further (p. 235): “We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in *564eyewitness identification and the suggestibility inherent in the context of the pretrial identification.” These observations are particularly pertinent in this case. Here, Grodomsky was shown a single picture which he said “looked like” the man who had robbed him. Sometime later he was shown a blown-up copy of this same I.D. card with distinguishing characteristics of the card only partially obscured from view by a piece of paper secured by tape. The blown-up I.D. card was significantly larger than the seven other photos with which it was exhibited and was further distinguished by its shape. The witness admitted on cross-examination that he recognized the photo as the I.D. card he had previously been shown. He failed to identify another photo of the defendant which was among the same group of photos, but which was not distinguished in shape, size or type from the others and which he had not previously seen. The opportunity of the witness to observe the robbers was extremely limited since he spent most of the time of the robbery tied up, face-down to the floor in a dimly-lighted restaurant. His lack of opportunity to observe the defendant was reflected in contradictions in his testimony concerning the respective size and roles of the robbers. It was also established on cross-examination that the witness had inadvertently observed the defendant under guard being brought into the courthouse before the trial and that he had seen him at the grand jury hearing where he was clearly identified as the defendant. These last facts, standing alone, however, are not sufficient to exclude the identification testimony; State v. Duffen, 160 Conn. 77, 273 A.2d 863, cert. denied, 402 U.S. 914, 91 S. Ct. 1397, 28 L. Ed. 2d 657; but they, combined with the preceding facts, lead me to conclude that the photographic *565identification procedure was impermissibly suggestive, and that the lower court acted erroneously by allowing the witness Glodomsky to testify concerning the out-of-court identification. Simmons v. United States, supra; Foster v. California, supra. While the first viewing of a single photograph of the defendant was justified by the necessity for immediate pursuit, the second viewing could not be justified by any such necessity. The police had had a substantial amount of time within which to identify and track down the suspect. The identification procedure was no longer justifiable as an urgent attempt to single out a suspect while the trail was still hot. Rather, its purpose was similar to that of a lineup after a suspect had already been singled out. The police had even obtained another photograph of the defendant, yet the witness was shown the distinctive photograph which he recognized as the photo he had been shown shortly after the crime. Under these circumstances, I am unable to distinguish the second viewing from the first, except that the second was not compelled and, therefore, not justified by the necessity of the first. It is further significant that the witness failed to make a certain identification the first time he was shown the I.D. card. It was only at the second viewing that he identified the face on the I.D. card as that of one of the robbers.

¶5Having determined that the pretrial identification procedure in this case was impermissibly suggestive I am also of the opinion that the in-court identification was erroneously permitted. We stated in State v. Smith, 165 Conn. 680, 685, 345 A.2d 41, that “a witness may, despite any irregularity or illegality in the procedure of identification from photographs, make an in-court identification if it is purged of *566the taint of the defective pretrial procedure by establishment of the fact that it is based upon disassociated and independent observation. See United States v. Wade, 388 U.S. 218, 241, 87 S. Ct. 1926, 18 L. Ed. 2d 1149; Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441; Rudd v. Florida, 477 F.2d 805, 812 (5th Cir.); State v. Oliver [161 Conn. 348, 356, 288 A.2d 81]. ‘The effort must be to determine whether, before the imprint arising from the unlawful identification procedure, there was already such a definite image in the witness’ mind that he is able to rely on it at trial without much, if any, assistance from its successor.’ United States ex rel. Phipps v. Follette [428 F.2d 912, 914-15 (2d Cir.), cert. denied, 400 U.S. 908, 91 S. Ct. 151, 27 L. Ed. 2d 146]; United States ex rel. Bisordi v. LaVallee [461 F.2d 1020, 1023 (2d Cir.)].” The identification procedure employed in this case did more than merely affect the weight to be accorded the witness’ identification testimony. Rather, the procedure required its exclusion as a matter of law. See United States v. Fowler, 439 F.2d 133 (9th Cir.). The burden rested on the state to prove by clear and convincing evidence that the in-court identification was based upon the witness’ observation of the defendant exclusive of the impermissibly suggestive photo identification procedure. Wade v. United States, supra; Mason v. United States, 414 F.2d 1176 (D.C. Cir.). The state did not meet this burden. In Smith(p. 686) we listed as indicative of the witness’ untainted recollection of the defendant “the similarity between the description of the defendant he gave to the police prior to seeing the police photographs and the defendant’s own physical characteristics, the one-half hour' during which [the witness] had the opportunity to *567observe the robber in a well-lighted area and in close physical proximity prior to and during the commission of the crime, and the positiveness with which [the witness] identified the defendant.” In the present case, Godomsky’s failure to give a detailed description of the defendant before viewing the photograph, the difficulty of observing the robbers during the crime, and the witness’ initial hesitance in identifying the defendant lead me to a conclusion opposite from that reached in Smith. The second time the same photo was shown to Godomsky, it was presented in an impermissibly suggestive manner which created a substantial possibility that Godomsky’s identification of the defendant as one of the men who robbed the restaurant stemmed from his recognition of the picture rather than from his independent memory of the appearance of any of the participants in the events of the night of September 24, 1972. Allowance of the in-court identification by Godomsky deprived the defendant of the due process of law to which he was entitled under the fourteenth amendment to the United States constitution. Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402.

¶6In this opinion Bogdanski, J., concurred.