State v. Bouteiller

961 A.2d 995

112 Conn.App. 40

STATE of Connecticut v. David BOUTEILLER.

No. 29196.

Appellate Court of Connecticut.

Argued October 22, 2008.

Decided January 6, 2009.

Vito A. Castignoli, Milford, for the appellant (defendant).

Eileen F. McCarthy, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Helen M. McLellan, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and DiPENTIMA and DUPONT, Js.

DUPONT, J.

The defendant, David Bouteiller, appeals from the judgment of the trial court revoking his probation and reinstating twenty months of the three year unexecuted portion of his previous sentence from a 2005 conviction. On appeal, the defendant claims that the court improperly (1) denied his motion to suppress the pretrial identification made by the victim because it violated his due process rights, (2) based its finding that he violated his probation on insufficient evidence and (3) abused its discretion by revoking his probation. We affirm the judgment of the trial court.

The following facts are relevant to the defendant's appeal. On January 5, 2005, the defendant was convicted of possession of narcotics, in violation of General Statutes § 21a-279(a). The defendant was sentenced to a term of three years imprisonment, execution suspended, with three years probation. A condition of the defendant's probation was that he "not violate any criminal law of the United States, this state or any other state or territory."

On September 6, 2006, the defendant, who was still on probation, was arrested and charged with attempt to commit robbery in the second degree in violation of General Statutes § § 53a-49 and 53a-135, and threatening in the second degree in violation of General Statutes § 53a-62. The charges stemmed from an August 10, 2006 incident at the Dunkin' Donuts store located on Kimberly Avenue in New Haven. Thereafter, on May 23, 2007, the defendant was charged with violating the terms of his 2005 order of probation, in violation of General Statutes § 53a-32.¹

The court held a violation of probation hearing on August 8 and 9, 2007. At the hearing, the state proffered evidence that the defendant violated his probation by committing the crime of attempt to commit robbery in the second degree. The bulk of the evidence produced by the state was elicited from the testimony of Mitigo Wahareetou, the victim, and Joseph Streeto, an officer with the New Haven police department. Wahareetou, an employee of the Dunkin' Donuts store, was working as a cashier at the drive-through window on the evening of August 10, 2006. On that date, at approximately 9:45 p.m., a man, whom she knew as a regular customer, approached the drive-through window on a bicycle and ordered a small cup of coffee. After she gave him the coffee, he reached his arm into the drive-through window and told her to give him the "drop money" or he would kill her. When she refused, the man lifted his T-shirt, as if he were retrieving a weapon. She then screamed and the perpetrator fled the scene on his bicycle.

When the police arrived at the store ten to fifteen minutes later, Wahareetou told them that the perpetrator was a regular customer and that she had seen him at the store a number of times before the incident. She described the perpetrator as "a little bit tall [with] a small face and a pointed nose." Twenty to thirty minutes later, the police brought an individual into the store and asked Wahareetou whether he was the man who demanded money from her. Wahareetou told the police that he was not. Before leaving, the police told her to call them if the perpetrator ever returned to the store.

Wahareetou continued to work at the store after the incident, and, approximately one month later, on the afternoon of September 6, 2006, the perpetrator returned. She informed her manager, and he called the police, but the perpetrator left before the police arrived. Her manager, however, was able to write down the license plate number of the perpetrator's blue pickup truck and gave the number to Streeto.

Streeto performed a department of motor vehicles check on the license plate number, which revealed that the plate belonged to a 1985 blue GMC pickup truck that was registered to the defendant, whose address was 456 Third Avenue, West Haven. Later that day, Streeto went to the defendant's home in West Haven and detained him while another officer went to the store to pick up Wahareetou so she could view the defendant for identification purposes. When the defendant was presented to Wahareetou for identification, she immediately identified him as the perpetrator and stated that she was 100 percent positive. At the violation of probation hearing, Wahareetou stated that she was still 100 percent certain of her earlier identification and identified the defendant again in the courtroom.

At the conclusion of the adjudicative phase² of the hearing, the court found that the state had met its burden of proving by a fair preponderance of the evidence that the defendant violated his probation by committing a crime, namely, attempt to commit robbery in the second degree. At the conclusion of the disposition phase of the hearing, the court found that the rehabilitative purpose of probation for the defendant would not be furthered. The court, therefore, revoked the defendant's original sentence and committed him to the custody of the commissioner of correction for twenty months.

I

The defendant first claims that the court improperly denied his motion to suppress the pretrial identification made by the victim because it violated his right to due process under the fourteenth amendment to the United States constitution.³ Specifically, the defendant argues that the one-on-one identification procedure used by the police was unnecessarily suggestive because it was not in close temporal proximity to the attempted robbery, and the resulting identification was unreliable because Wahareetou's testimony was inconsistent. We disagree.⁴

The following additional facts are relevant to the defendant's claim. On the second day of the revocation of probation proceeding, the defendant moved to suppress Wahareetou's one-on-one identification of him on the ground that the procedure was inherently suggestive and that her identification was unreliable, as illustrated by her inconsistent testimony as to the number of times she had seen the defendant at the store before and after the attempted robbery.⁵ The court, in denying the motion to suppress, stated: "[O]ne-on-one show-ups are suggestive, no question about that, but was the initial observation by the alleged victim of the defendant reliable? It's lighted, she's looking at him, she has good chance to see him, she describes him as thin, thin face, pointy nose, described what he was wearing in clothing and then when the police stopped that one person ... they brought that person back, she didn't just jump at it and say that's him, she said that's not him, so [it was reliable]." "[The] [o]ne-on-one show-up you can say is unnecessarily suggestive but it is, under all the circumstances, reliable ...."

We now set forth our applicable standard of review. It is well settled that "[w]hether an identification procedure offends a defendant's due process rights depends on (1) whether it was impermissibly and unnecessarily suggestive, and (2) if so, whether the identification was nonetheless reliable based on the totality of the circumstances." State v. Sims, 12 Conn.App. 239, 242, 530 A.2d 1069, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987). "To prevail on his claim, the defendant has the burden of showing that the trial court's determinations of suggestiveness and reliability both were incorrect....

"Furthermore, [w]e will reverse the trial court's ruling [on evidence] only where there is an abuse of discretion or where an injustice has occurred ... and we will indulge in every reasonable presumption in favor of the trial court's ruling. ... Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error." (Internal quotation marks omitted.) State v. Randolph, 284 Conn. 328, 385, 933 A.2d 1158 (2007).

"Both this court and our Supreme Court have stated that a one-to-one confrontation between a [victim] and the suspect presented to him for identification is inherently and significantly suggestive because it conveys the message to the [victim] that the police believe the suspect is guilty." (Internal quotation marks omitted.) State v. Thompson, 81 Conn.App. 264, 272, 839 A.2d 622, cert. denied, 268 Conn. 915, 847 A.2d 312 (2004). We have recognized, however, that "[w]hile a one-on-one confrontation between a victim of a crime and a person whom the police present as a suspect is presumptively suggestive, it does not automatically follow that such a show-up is impermissibly suggestive." State v. Sims, supra, 12 Conn.App. at 242, 530 A.2d 1069. "[I]t has been held repeatedly ... that one man confrontations do not per se constitute a denial of due process of law." (Internal quotation marks omitted.) State v. Thompson, supra, at 272, 839 A.2d 622. "Prompt on-the-scene confrontations tend under some circumstances to ensure accurate identifications and the benefit of promptness not only aids reliability but permits a quick release of an innocent party if there is no positive identification, allowing the police to resume the investigation with only a minimum of delay." State v. Sims, supra, at 242, 530 A.2d 1069.

In the present case, the court, in denying the defendant's motion to suppress, recognized that the particular one-on-one identification may have been unnecessarily suggestive but held that the...