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STATE v. WARNER12/26/1967
. 950, 78 S.Ct. 915, 2 L.Ed.2d 843 (the shoes worn by the defendant held on a charge of bank robbery). The admission of this evidence was correct.
The second class of evidence to which the defendant refers is that resulting from an examination of the defendant's vehicle by police officers while the car was in Arbo's garage. Prior to trial defendant moved to suppress any evidence gained by the police during such examinations of the car and the presiding justice conducted a hearing on this motion before the jury was impanelled and testimony at this hearing showed that the defendant's vehicle was towed by the wrecker to Arbo's garage, where it remained some three days. During this time there was no search of the interior of the car but the Waterville police examined its exterior surface, photographed it, and took from its hood hair and other substances which were subjected to laboratory examination. The defendant moved that the witness' observations and the reports of such laboratory tests should be suppressed because the car was allegedly illegally held. The presiding justice did not rule at once on this motion and, after an off-the-record conference, the State elected not to offer the evidence complained of with the exception of the photographs which the justice excluded at the trial.
The defendant contends that two references during the trial to knowledge gained by the police during that examination of the car in Arbo's garage were prejudicial to him under the "fruit from the poisoned tree" doctrine, arguing that the car was illegally held and that the results of any examination of it there would be tainted. Silverthorne Lumber Company v. United States, supra; Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1962).
One of these instances concerned the rebuttal testimony of Officer Nelson who, after having testified generally concerning the sizes and shapes of the dents on the front of defendant's car, returned in rebuttal to contradict a defense witness and gave more specific estimates of measurements in inches. In the meantime he had seen the photographs that the justice had excluded.
The presiding justice excused the jury and conducted a hearing during which counsel for the defendant examined the witness as to the source of his knowledge. He found that the witness' description of the measurement of the dents was based on a recollection of his examination of the defendant's car in the driveway in Fairfield which recollection was independent of any knowledge he may have gained by looking at the photographs at recess. He denied the defendant's motion to strike that part of the witness' testimony. He had had the opportunity to observe the witness through a long direct and cross-examination in the motion to suppress and in the trial itself and was able to evaluate the witness' demeanor. His denial of defendant's motion to strike is supported by the record. Merely seeing the pictures does not seal the lips of the officer as to his earlier observations. We hold that the connection of the photographs with the testimony of the witness is too attenuated to taint it.
The other instance concerns Officer MacArthur's testimony regarding the mirror which he had found in the street near Mrs. Charity's body. The officer testified:
"I kept it for evidence and I later matched it up with — " At this point he was interrupted. Later, on cross-examination, defendant's counsel was attacking the officer's testimony concerning the manner of the officer's preservation of the exhibit and the record shows this question and answer:
"Q. You didn't have t
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