State v. Williams
State v. Williams
Opinion of the Court
Opinion
The principal issue in this case concerns the reliability of eyewitness identification. Following oral argument in this court, our Supreme Court decided State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012). In Guilbert, our Supreme Court held, among other things,
The defendant, Stanley Williams, appeals from the judgments of conviction, rendered following a jury trial, of two counts of robbery in the first degree in violation
The jury reasonably could have found the following facts. On May 12, 2009, Satnam Kaur (Kaur), a native of India,
After the lottery customer left the liquor store, the defendant called out to Kaur, asking for the price of
When the lottery customer was gone, the defendant withdrew a large kitchen knife from his clothing,
The defendant removed a number of shirts from a rack and took them to the counter. DeJesus was standing approximately one foot away from the defendant and was able to see his face. DeJesus rang up the cost of the shirts and told the defendant how much he owed. Because the defendant just stared at her, DeJesus repeated the cost of the shirts. She then looked down, saw that the defendant’s hands were partially concealed inside his sweatshirt and that he was wearing latex gloves. When the defendant withdrew his hands from his sweatshirt, he was holding a knife in his right hand. He grabbed DeJesus with his left hand, placed the knife at her neck and ordered her to open the cash register, which she did. The defendant removed cash from the drawer and asked DeJesus where the rest of the money was. DeJesus told him there was no more money. The defendant threw DeJesus to the floor, held the knife at the back of her neck and told her not to move or he would kill her. As he fled, the defendant took DeJesus’ purse. After she heard the door chimes ring, indicating that the defendant had left the outlet store, DeJesus called 911 and locked the door. Two police officers arrived at the store. Although she initially was very upset, DeJesus calmed down while the police transported her to the station, where she provided a written statement.
I
EVIDENTIARY CLAIMS
The defendant’s theory of defense was misidentification. On appeal, he claims that the court abused its discretion by (1) precluding expert testimony regarding the factors that affect the reliability of eyewitness identification and (2) permitting an optometrist to testify about the defendant’s need to wear eyeglasses. We reject both of the defendant’s evidentiary claims.
A
Evidentiary Facts
Before addressing the defendant’s specific claims, we set forth the procedural history and evidence regarding
During the state’s case, the jury heard a recording of Kaur’s 911 call in which she stated that the robber had a white beard. Adam Laird was the first Waterbury police officer to arrive in response to the 911 call. Kaur told Laird that the robber was a thin black man who was wearing a gray sweatshirt, a black skullcap and large, metal eyeglasses. After Kaur was transported to Saint Mary’s Hospital for medical treatment, her daughter, Nambnee Kaur, came to the liquor store and provided Brian Juengst, a crime scene technician, with access to the store’s twenty-four-hour-a-day surveillance video. Moving and still images from the surveillance video were shown to the jury, and Kaur testified that they depicted accurately how the robbery took place.
The day following the robbery, Orlando Rivera, a Waterbury police detective, went to the liquor store and presented a photographic array, which included a photograph of the defendant, to Kaur. According to Rivera, Kaur was scared and did not necessarily want to look at the photographs. She did not make an identification from the photographic array, and she did not identify the defendant as the robber at trial when asked by the assistant state’s attorney whether she saw the robber in the courtroom.
At trial, Kaur testified that the robber was black, but she could not remember what he was wearing, other
Rivera testified that he took a written statement from DeJesus. DeJesus described the robber as having a goatee, being five feet, six inches to five feet, eight inches tall, black, older and wearing a hoodie. She testified that the robber had a large knife. Rivera presented DeJesus with a photographic array, which he had not compiled. Prior to presenting her with the array, Rivera gave DeJesus written instructions, which informed her that the suspect may or may not be in the array. DeJesus signed the form. According to Rivera, DeJesus glanced at the photographs and immediately identified the photograph of the defendant as that of the robber. Rivera did not question her as to her certainty. He also did not inform her that the man in the photograph she had selected depicted the man the police suspect, but he did tell her the man’s name and birth date.
At trial, DeJesus testified that she recognized the robber as a regular customer when he entered the outlet store. She described the robber as black, older, maybe in his late forties, short, scruffy looking, having a gray beard and wearing a black ski hat and a black hoodie. Given his appearance, she thought that the robber might be related to someone with whom she had gone to high
There was a surveillance system in the outlet store, too, and the police obtained a copy of the robbery video. Still and moving images from the surveillance video were shown to the jury. DeJesus testified that the surveillance video accurately depicted the way in which the robbery occurred.
The jury saw a photograph of the defendant taken on May 19, 2009, five days after the second robbery. The photograph depicted the defendant with a thin, gray goatee. Writing adjacent to the photograph states the defendant’s birth date, September 11, 1958, his height, five feet, five inches, and his weight, 130 pounds. Three more photographs of the defendant taken on May 19, 2009, depicting his face from the front, right and left also were put in evidence. Those images also depict the defendant with a white or gray goatee.
With regard to the defendant’s second evidentiary claim, James Smyth, an optometrist with the department, testified with regard to the defendant’s vision and need for eyeglasses. According to Smyth, he or one of his associates had examined the defendant’s eyes five times between 2004 and 2009. Smyth first examined the defendant’s eyes in 2004, and again in 2007 and in November, 2009. He prescribed bifocals for the defendant to enable him to see near and far. According to Smyth, there were minimal changes in the defendant’s
B
Standard of Evidentiary Review
The standard of review of evidentiary claims is well known. “We review the trial court’s decision to admit evidence, if premised on a correct view of the law . . . for an abuse of discretion. ... It is axiomatic that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. ... In this regard, the trial court is vested with wide discretion in determining the admissibility of evidence .... Accordingly, [t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Furthermore, [i]n determining whether there has been an abuse of discretion, every reasonable presumption should be made in favor of the correctness of the trial court’s ruling, and we will upset that ruling only for a manifest abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Popeleski, 291 Conn. 769, 774, 970 A.2d 108 (2009). In a criminal case, an improper evidentiary ruling by the trial court is harmless if the reviewing court has a fair assurance that the error did not substantially affect the jury’s verdict. State v. Sawyer, 279 Conn. 331, 357, 904 A.2d 101 (2006), overruled in part on other grounds by State v. DeJesus, 288 Conn. 418, 454 n.23, 953 A.2d 45 (2008) (en banc).
C
Defendant’s Claim Regarding Expert Testimony
The defendant claims that the court abused its discretion by precluding him from presenting expert testimony from Steven Penrod, a psychologist, regard
The following additional facts are relevant to our resolution of the defendant’s claim. After the jury had been selected, but before the presentation of evidence began, the court held a hearing on the defendant’s motion to suppress DeJesus’ identification of the defendant in the photographic array. The defendant claimed in his motion that the procedure used by the police officers in obtaining the photographic identification was unduly suggestive and that the resulting identification was unreliable under the totality of the circumstances. The court, however, found that the procedure used in presenting the photographic array to DeJesus was not unnecessarily suggestive and that the identification was not unreliable under all of the circumstances.
During jury selection, the defendant informed the venire panel that he intended to call an expert witness to testify with respect to the reliability of eyewitness identification in general. The state filed a motion to preclude such expert testimony, arguing that the testimony should be precluded for three reasons: (1) the testimony fails to meet the standards of relevance and reliability established in State v. Porter, supra, 241 Conn. 64, (2) the testimony invades the province of the jury to determine what weight to give to identifications and (3) the testimony would not assist the finder of fact as required by the § 7-2 of the Connecticut Code of Evidence.
The defendant opposed the state’s motion to preclude expert testimony, arguing that there was no need for a Porter hearing because the factors were well established and that controlling case law, Velasco v. Commissioner of Correction, 119 Conn. App. 164, 173 n.4, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010), did not prohibit the admission of expert testimony on eyewitness identification but left it to the
The defendant filed an offer of proof regarding Pen-rod’s testimony on memory and the accuracy of eyewitness identification. The written proffer included a fisting of Penrod’s credentials and a description of his testimony regarding how memory works, specifically, that memory is divided into three stages—acquisition, retention and retrieval—and how an eyewitness’ memory is affected at each stage. The proffer contained nothing specific to the eyewitness identifications at issue in this case. At the court’s request, the defendant filed a supplemental offer of proof
With respect to DeJesus’ identification of the defendant in the photographic array, defense counsel proffered that Penrod would testify that a simultaneous
The state’s opposition to Penrod’s testimony was grounded in § 7-2 of the Connecticut Code of Evidence.
As to the photographic array Rivera showed to DeJesus, the state argued that there was no evidence that Rivera had coached the identification. Moreover, DeJesus knew the robber, having seen him in the outlet store before. The state argued that although the array in this case was a simultaneous array, Pernod should not be permitted to testify as to what he may think is a better procedure because that is not the issue before the jury. The state contended that no expert was needed to point out differences between the images in the photographic array because the jurors could see the differences for themselves. The state added that in State v. Marquez, 291 Conn. 122, 155, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009), our Supreme Court noted that the scientific research regarding whether sequential or simultaneous arrays result in more accurate identifications is in a state of flux.
The court found that proffered factors affecting DeJesus’ identification and the photographic array did not constitute scientific or expert testimony that would assist the jury.
With respect to the preclusion of expert testimony, “[w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. ... A nonconstitutional error is harmless when an appellate corut has a fair assurance that the error did not substantially affect the verdict.” (Citations omitted; internal quotation marks omitted.) State v. Snelgrove, 288 Conn. 742, 758, 954 A.2d 165 (2008).
“The extensive and comprehensive scientific research . . . convincingly demonstrates the fallibility of eyewitness identification testimony and pinpoints an array of variables that are most likely to lead to a mistaken identification. [T]he scientific evidence ... is both reliable and useful.” (Footnotes omitted; internal quotation marks omitted.) Id., 235-36. “[T]he science abundantly demonstrates the many vagaries of memory encoding, storage and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other facts that bear on the reliability of eyewitness identifications.” (Internal quotation marks omitted.) Id., 237.
“[E]xpert testimony on the reliability of eyewitness identifications does not [invade] the province of the jury to determine what weight or effect it wishes to give to eyewitness testimony. . . . An expert should not be permitted to give an opinion about the credibility or accuracy of the eyewitness testimony itself; that determination is solely within the province of the jury. Rather, the expert should be permitted to testify only about factors that generally have an adverse effect on
“In light of the numerous scientifically valid studies cited [in Guilbert] ... as a general matter, competent expert testimony predicated on those studies’ findings satisfies the threshold admissibility requirement of State v. Porter, supra, 241 Conn. 57, that such testimony must be based on scientific knowledge rooted in the methods and procedures of science ... at least with respect to the following propositions: (1) there is at best a weak correlation between a witness’ confidence in his or her identification and the identification’s accuracy; (2) the reliability of an identification can be diminished by a witness’ focus on a weapon; (3) high stress at the time of observation may render a witness less able to retain an accurate perception and memory of the observed events; (4) cross-racial identifications are considerably less accurate than identifications involving same races; (6) memory diminishes most rapidly in the hours immediately following an event and less dramatically in the days and weeks thereafter; (6) an identification may be less reliable in the absence of a double-blind, sequential identification procedure; (7) witnesses may develop unwarranted confidence in their identifications if they are privy to postevent or postiden-tification information about the event or the identification; and (8) the accuracy of an eyewitness identification may be undermined by unconscious transference, which occurs when a person seen in one context is confused with a person seen in another.” (Citation omitted; internal quotation marks omitted.) State v. Guilbert, supra, 306 Conn. 253-54.
A trial court, however, “retains broad discretion in ruling on the qualifications of expert witnesses and determining whether their opinions are relevant. See,
The defendant claims that the court abused its discretion in granting the state’s motion to preclude Penrod from testifying. At the time the court issued its ruling, it stated that it had reviewed the cases cited by the parties
Although the court granted the motion to preclude Penrod’s testimony on grounds that are inconsistent, in part, with State v. Guilbert, supra, 306 Conn. 218, Guilbert holds that the trial court retains discretion to preclude such expert testimony on the basis of the facts and circumstances of a particular case. Id., 257. In ruling on the state’s motion to preclude Penrod’s testimony, the court addressed the evidence before the jury and some, but not all, of the identification factors listed in Guilbert.
Our Supreme Court has stated that “[i]n determining whether there has been an abuse of discretion, every reasonable presumption should be made in favor of the correctness of the trial court’s ruling, and we will upset that ruling only for a manifest abuse of discretion. . . .
We conclude that the court did not abuse its discretion by precluding Penrod’s testimony regarding eyewitness identification. In issuing its ruling, the court stated, in part: “The factors, as fisted by the defense, excluding the cross-racial identification and the photo array, do not constitute scientific or expert testimony of such that would assist the jury in this matter. There is the video of the incident, there is testimony, and the jurors can weigh that evidence and determine what weight to give to the identification.” The defendant has not challenged the testimony or surveillance or photographic evidence on appeal.
Our code of evidence provides that a qualified expert may testify concerning scientific evidence “if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.” Conn. Code Evid. § 7-2. On the basis of our review of the defendant’s proffer of Penrod’s testimony and the evidence, we conclude that the defendant failed to lay an adequate foundation with respect to the cross-racial identification factor. We further conclude that the evidence does not support a need for expert testimony regarding DeJesus’ identification of the defendant as the person who robbed the outlet store. Although we do not agree
DeJesus testified that she knew the defendant because he was a regular customer in the outlet store. She recognized him when he entered the outlet store. “[T]he accuracy of an eyewitness identification may be undermined by unconscious transference, which occurs when a person seen in one context is confused with a person seen in another.” State v. Guilbert, supra, 306 Conn. 239. In Guilbert, our Supreme Court concluded that a witness’ familiarity with the perpetrator of a crime was sufficient reason to preclude expert testimony with respect to eyewitness identification. Id., 261. The facts concerning one of the witnesses in Guilb-ert are similar to the facts concerning DeJesus’ identification of the defendant in this case.
“[A]lthough there are exceptions, identification of a person who is well-known to the eyewitness generally does not give rise to the same risk of misidentification as does the identification of a person who is not well-known to the eyewitness.” Id., 259-60. “The primary concern expressed in cases discussing the problems with eyewitness identification relates to a witness observing and subsequently identifying a stranger. . . . Witnesses are very likely to recognize under any circumstance the people in their fives with whom they are most familiar, and any prior acquaintance with another person substantially increases the likelihood of an accurate identification.” (Internal quotation marks omitted.) Id., 260 n.39, quoting Haliym v. Mitchell, 492 F.3d 680, 706 (6th Cir. 2007).
Guilbert concerned the identification of the person responsible for two murders and an assault in the first
In this case, although DeJesus did not know the defendant’s name, she testified that she recognized him as a regular customer of the outlet store that was robbed. Although DeJesus put no time frame on the period in which she had come to be familiar with the defendant, she expressly claimed familiarity with him as a regular customer where she had opportunity to see him on multiple occasions before the robbery. We conclude, on the basis of the facts of this case and their similarity to those concerning Baldwin in Guilbert, that the risk of misidentification was small. The court therefore did not abuse its discretion in precluding Penrod’s proffered expert testimony.
Testimony from Department Optometrist
The defendant’s second evidentiary claim is that the court abused its discretion by permitting Smyth, the optometrist with the department, to testify about the defendant’s need to wear eyeglasses. We do not agree, as the court found that Smyth’s testimony was relevant to the misidentification issue raised by the defendant.
Within the defendant’s abuse of discretion claim, he claims that the state illegally procured Smyth’s testimony by issuing a subpoena to obtain his records from the department, which he further contends violated his rights under the Health Insurance Portability and Accountability Act of 1996 (HIPAA)
The following procedural history is relevant to the defendant’s claim. At the time of trial, the defendant provided a witness list identifying witnesses who would testify that he did not wear eyeglasses.
After Kaur testified, the state sought to introduce the records through Smyth. The defendant objected, and the court sustained the objection on relevancy grounds, but without prejudice. After the jury viewed the still and moving surveillance images of the robberies, which depicted the robber wearing large eyeglasses, the state renewed its efforts to present Smyth’s testimony. The defendant objected again, and the court again sustained the objection, but without prejudice.
When defense counsel cross-examined DeJesus, he challenged her description of the robber by noting that her signed statement failed to mention that the robber wore eyeglasses. At the conclusion of DeJesus’ testimony, the court sua sponte revisited its decision concerning Smyth’s testimony because defense counsel had questioned DeJesus about the robber’s eyeglasses. The defendant objected on two grounds: because he had never signed a release permitting the state to obtain his
Smyth testified that the defendant needed to wear bifocals at all times, but the defendant’s records were not put into evidence. The next day, the defendant filed a motion to strike Smyth’s testimony, claiming that his records had been obtained illegally under the fourth, fifth and fourteenth amendments to the United States constitution, article first, § 8, of the constitution of Connecticut and HIPAA.
With regard to the defendant’s claim that the state illegally issued the subpoena, General Statutes § 52-143
“A subpoena is an appropriate process for the production of documents that are relevant to the matter before the court.” (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 728, 759 A.2d 995 (2000). “If the subpoena on its face is too broad and sweeping, it is subject to a motion to quash.” (Internal quotation marks omitted.) Id. In this case, the defendant failed to file a motion to quash. The court therefore had no occasion to rule on the breadth of the subpoena. We do not review claims raised for the first time on appeal.
As to the defendant’s claim that his rights under HIPAA were violated by the state when it issued a subpoena to the department, the defendant has not pointed to any finding by the court that the state failed to abide by the HIPAA regulations. The defendant does not argue that the state violated § 52-143, only that that
Turning to the defendant’s claim that the state violated his right to privacy under the fourth and fourteenth amendments,
We begin with the facts. Legrand was charged with operating a motor vehicle under the influence of drugs and failing to keep a narcotic drug in its original container. Id., 241-42. The prosecutor expected that Legrand’s physician would testify on his behalf and therefore subpoenaed the physician, ordering him to bring Legrand’s medical records from “ ‘January 1, 2007, to August 1, 2008’,” to court. Id., 245. The records were delivered to court under seal, and the prosecutor asked that they be unsealed in anticipation of the physician’s testimony. Id. Defense counsel indicated that he was unaware of the state’s subpoena and refused to consent to the disclosure of the medical records, noting that Legrand “had not waived his right to privacy under . . . federal law . . . .’’Id. Defense counsel argued that a warrant was necessary to obtain the medical records. Id., 247. The Legrand trial court concluded that the prosecutor had made a sufficient showing to permit the general disclosure of Legrand’s medical records from January 1, 2006, to August, 2008. Id.
On appeal, Legrand claimed that “a warrant was required to seize [his] medical records . . . .’’Id., 247-48. This court noted certain significant factors, to wit: although Legrand objected to the subpoena, (1) he failed to file a motion to suppress or a motion to quash;
There are similarities between the Legrand factors and the facts of this case. The defendant’s witness list indicated that he intended to present testimony that he did not need eyeglasses and his theory of defense was misidentification. The defendant did not file a motion to quash the state’s subpoena and the department apparently did not communicate with him or the state before faxing the records to the office of the state’s attorney. Although the records were disclosed to the office of the state’s attorney by facsimile, the court afforded the defendant an opportunity to object to their use at trial and twice sustained the defendant’s objection to them, on grounds of relevance, until he questioned DeJesus on cross-examination about whether the robber was wearing eyeglasses. See, e.g., State v. Marshall, 114 Conn. App. 178, 185, 969 A.2d 202 (defense counsel opened door to previously excluded evidence by eliciting testimony regarding ownership of vehicle), cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).
Legrand was decided pursuant to the following legal principles. “The purpose of [the fourth] amendment is to constrain intrusions that are not justified in the circumstances or those made in an improper manner; it does not protect against all intrusions. . . . Our Supreme Court has explained that the fourth amendment protects against the unreasonable seizure of an individual’s property. . . . [T]o state a constitutional violation, the [party claiming such a violation] must allege (1) [the state actor’s] conduct constituted a seizure, and (2) the seizure, if one occurred, was unreasonable. ...
“[T]he use of a subpoena may ... be reasonable and therefore not violate the fourth amendment.” Id., 252. “A subpoena . . . commences an adversary process during which the person served with the subpoena may challenge it in court before complying with its demands. ... As judicial process is afforded before any intrusion occurs, the proposed intrusion is regulated by, and its justification derives from, that process.” (Internal quotation marks omitted.) Id.
In resolving Legrand, this court concluded “that the subpoena issued by the prosecutor was reasonable, and therefore did not violate the fourth amendment. As a general rule ... [a] subpoena is an appropriate process for the production of documents that are relevant
Applying the foregoing legal principles to the facts before us now, we conclude that the subpoena the state issued to the department to obtain the defendant’s records was reasonable and did not violate his rights under the fourth amendment. The state issued the subpoena in response to the defendant’s witness list, which indicated that he would offer testimony that he did not wear eyeglasses. The subpoena was limited in scope in that it requested records relating only to the defendant’s vision, not his complete medical file. The purpose of the records was to impeach the defendant’s evidence and to support DeJesus’ identification of the defendant as the robber. Although the department disclosed the records to the assistant state’s attorney before the defendant had an opportunity to obj ect to the subpoena, the court afforded him opportunities to object to Smyth’s testimony and sustained his objections until the defendant himself opened the door by questioning DeJesus about her description of the robber. The evidence was material and relevant to the identification of the robber. Smyth’s testimony was limited to when the defendant’s eyes were examined and his need to wear bifocals prior to and after the robberies. We conclude that the subpoena for the defendant’s records
Finally, because the court determined that Smyth’s testimony was relevant to the defendant’s theory of misidentification, we conclude that the court’s eviden-tiary ruling permitting Smyth to testify as to the defendant’s need for eyeglasses did not constitute an abuse of discretion.
II
The defendant also claims that the court abused its discretion by denying his motions for reconsideration of his motion to strike Smyth’s testimony and for a new trial predicated on (1) the exclusion of testimony from an expert on eyewitness identification and (2) the evidence regarding his need to wear eyeglasses. The defendant’s claims fail.
“Appellate review of a trial court’s decision granting or denying a motion for a new trial must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a new trial is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. . . . In our review of the denial of a motion for [a new trial], we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion. . . .
“In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling.
The following procedural history is relevant to the defendant’s claims. On September 3, 2010, the defendant filed a motion for a new trial pursuant to the fifth, sixth and fourteenth amendments to the United States constitution, and article first, § 8, and article second of the constitution of Connecticut, Practice Book § 42-53 et seq., and State v. Outing, supra, 298 Conn. 34.
Prior to sentencing on October 27, 2010, after reviewing the cases cited by the parties at oral argument, the court denied the defendant’s motion for a new trial in an oral ruling. The court reviewed the procedural history noting that each side agreed that Pernod was qualified to provide expert testimony on eyewitness identification but that it had granted the state’s motion to preclude Penrod’s testimony. The court further stated that in State v. Outing, supra, 298 Conn. 24, our Supreme Court “signaled a willingness to revisit the holding in [State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986), overruled in part by State v. Guilbert, 306 Conn. 218, 253, 49 A.3d 705 (2012)], and [State v. McClendon, 248 Conn. 572, 730 A.2d 1107 (1999), overruled in part by State v. Guilbert, 306 Conn. 218, 253, 49 A.3d 705 (2012)], and two justices have expressed that those cases should be overruled. However, the Supreme Court did not overrule Kemp and McClendon in Outing.” The trial court found that in uOuting, the [Supreme] Court . . . noted that the proffered testimony of the expert was cast in general terms and that the witnesses in that case knew the defendant.”
With respect to this case, the trial court stated that “the defendant narrowed the proffered testimony of Dr. Penrod, but at the end it was still cast to some extent in general terms. There was no proffer that Dr. Penrod would give an opinion that the factors that he was going
As to the motion for reconsideration of the motion to strike Smyth’s testimony, the court stated: “The defendant has alleged that the records on which Dr. Smyth’s testimony was based had been obtained by an illegal subpoena and the state should have secured the records by a search and seizure warrant. The court has considered the arguments and the documents attached to the motion. The defendant may very well have an issue with the department concerning the release of any information. However, there isn’t any evidence that the state had illegally obtained the records, which were the subject of Dr. Smyth’s testimony, and the records were not offered into evidence. Accordingly, that motion is denied.”
On the basis of our review of the motions and the arguments to the court prior to sentencing, we cannot conclude that the court abused its discretion in denying the motions. The defendant’s claim that the court abused its discretion by denying his motion for a new trial is predicated on his underlying evidentiary claims.
The judgments are affirmed.
In this opinion the other judges concurred.
In Guilbert, our Supreme Court stated that “[m]any of the factors affecting the reliability of eyewitness identifications are either unknown to the average juror or contrary to common assumptions, and expert testimony is an effective way to educate jurors about the risks of misidentification. To the extent that [State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986)] and [State v. McClendon, 248 Conn. 572, 730 A.2d 1107 (1999)] held to the contrary, they are hereby overruled.” State v. Guilbert, supra, 306 Conn. 252-53.
The defendant was charged in two informations for robberies he committed on May 12,2009, and May 14,2009. The court, Damiani, J., consolidated the informations for trial.
In view of our Supreme Court’s decision in Ouilbert, we sua sponte ordered the parties “to submit supplemental briefs of no more than [twelve] pages explaining how, if at all, State v. Guilbert, [supra, 306 Conn. 218], affects the issue regarding expert testimony that was raised on the defendant’s appeal.”
English is not Kaur’s native tongue. Although she has some English language fluency, she testified with the assistance of an interpreter.
Kaur described the length of the blade as running from the top of her fingers to her wrist.
Kaur gave her statement in English without the assistance of an interpreter.
The defendant was charged in part B informations with being a persistent dangerous felony offender in violation of § 53a-40 (a). The charges were tried to the jury, which found the defendant guilty.
During her final argument, the assistant state’s attorney asked the jury to consider Kaur’s demeanor when she responded to the inquiry in that Kaur refused to look around the courtroom, particularly in one direction.
Although the defendant states his claim as an alleged abuse of discretion, at several places in his brief, he invokes his constitutional right to present a defense. To the extent that the defendant is now claiming that he was prevented from presenting a defense, we decline to review such a claim. At trial, the defendant represented that the court’s decision whether to admit Penrod’s testimony was discretionary. This court does not review claims not raised at trial; see State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973); and the defendant has not requested review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We therefore do not address any claims or arguments of a constitutional nature arising from the preclusion of Penrod’s expert testimony. Moreover, in Guilbert, our Supreme Court stated that the trial court retains “broad discretion in ruling on the qualifications of expert witnesses and determining whether their opinions are relevant.” State v. Guilbert, supra, 306 Conn. 257. Discretion pertains to evidentiary, not constitutional, rulings. See State v. Popeleski, supra, 291 Conn. 774.
In resolving the defendant’s claim regarding expert testimony, we are aware that the law has evolved since the court precluded Penrod from providing expert testimony on eyewitness identification. See State v. Guilbert, supra, 306 Conn. 218; State v. Outing, 298 Conn. 34, 3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011). Although the case law on which the court relied is no longer sound; see footnote 1 of this opinion; on the basis of the record and the evidence in this case, we conclude that the court did not abuse its discretion by granting the state’s motion to preclude Penrod’s expert testimony. “We can sustain a right decision although it may have been placed on a wrong ground.” Stapleton v. Lombardo, 151 Conn. 414, 417, 198 A.2d 697 (1964).
In opposing Penrod’s testimony, the state did not challenge Penrod’s qualifications, but relied, in part, on State v. McClendon, 248 Conn. 572, 730 A.2d 1107 (1999), overruled in part by State v. Guilbert, 306 Conn. 218, 253, 49 A.3d 705 (2012), and State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986), overruled in part by State v. Guilbert, 306 Conn. 218, 253, 49 A.3d 705 (2012), to the extent that McClendon and Kemp stood for the proposition that the factors affecting eyewitness identification are within the common knowledge of the average person. But see footnote 1 of this opinion.
The court stated: “I am ordering you to provide to the court the following: If you intend to call an expert concerning eyewitness identification, in light of the fact that the state has filed an objection to that, I need to know the substance of the identification ... at this point to show that it’s unreliable. I need some authority on it because I don’t know at this point if this is a situation where there even needs to be a preliminary hearing, because I don’t even know what the substance is, and neither does the state. So, I don’t know if this is something that requires a Porter hearing because of the limited information that has been provided so far.”
In his supplemental written offer of proof, the defendant noted that DeJesus recognized the robber as a person who had been in the outlet store previously and that unconscious transference is known to taint a subsequent identification. The defendant included the unconscious transference factor in his written proffer of proof, but did not present an argument and facts regarding it to the court. At the conclusion of defense counsel’s argument regarding the factors, the court asked counsel if there was anything more. Counsel answered in the negative. In ruling on the state’s motion to preclude Penrod’s testimony, the court made no findings with regard to, and did not mention, the unconscious transference factor. The record therefore is inadequate for us to consider the defendant’s claim regarding this factor on appeal.
At oral argument on the motion to preclude expert testimony, the defendant stated that Penrod’s testimony would pertain to DeJesus, not Kaur, as DeJesus was the only witness who made an identification.
Defense counsel argued that DeJesus was Hispanic, given her name and skin tone, and that she clearly was not black. The court questioned whether being Hispanic is a race or an ethnic identity. The court found that there was no foundation for it to consider the cross-racial identification factor. DeJesus’ race was not placed into evidence. We agree with the court that there is no evidence of DeJesus’ race and that the sound of one’s name and tone or color of one’s skin is not necessarily evidence of one’s race.
In a simultaneous array, all of the photographs are shown to the witness at one time. In a sequential array, the photographs are shown to the witness one at a time.
Throughout his argument opposing the state’s motion to preclude, defense counsel identified factors that affect the reliability of eyewitness identification and the evidence in this case. The court repeatedly asked defense counsel whether there were other factors to consider. Defense counsel never mentioned unconscious transference or evidence related thereto.
Section 7-2 of the Connecticut Code of Evidence provides: “A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.”
In asserting its argument, the state relied on State v. Kemp, 199 Conn. 473, 477, 507 A.2d 1387 (1986) (expert testimony regarding reliability of eyewitness identification within knowledge of jurors; expert testimony on subject invades province of jury to determine weight of evidence), overruled in part by State v. Guilbert, 306 Conn. 218, 253, 49 A.3d 705 (2012); State v. McClendon, 248 Conn. 572, 589, 730 A.2d 1107 (1999) (same), overruled in part by State v. Guilbert, 306 Conn. 218, 253, 49 A.3d 705 (2012), which, at the time, were the law in Connecticut. But see footnote 1 of this opinion.
See State v. Artis, 136 Conn. App. 568, 626 n.7, 47 A.3d 419 (Lavine, J., concurring in part and dissenting in part) (“Eyewitness Identification Task Force, state of Connecticut, Report Pursuant to Public Act 11-252, § 2 [February 8, 2012] available at http://www.cga.ct.gov/jud/eyewitness/docs/
In this opinion, we are not called on to decide whether a simultaneous or sequential photographic array is a more reliable method of identification.
The court ruled from the bench in granting the state’s motion to preclude expert testimony, stating in relevant part: “The defendant proffered the testimony of Dr. Penrod as an expert concerning the reliability ... of eyewitness identification. Included in the proffer[ed] testimony [were] the following facts that the accused in the testimony indicates —and the videotape—basically, the evidence presented that the expert would be relying on, in terms of the proffered testimony, as the accused was wearing a hat and gloves and such obscures the head and face; that the person accused was different in the photo array than on the day of the incident, appeared different; that there was focus on the knife, and there was extensive questioning concerning the knife; that the stress of the incident, and there was
“The state moved to [preclude] the testimony and in support cited Connecticut Code of Evidence § 7-2 and also a number of cases. The issue, then, is the identity of the person who committed the robbery, and the testimony proffered goes to the facts and factors mentioned and how they would affect the reliability of the identification. . . .
“The factors, as listed by the defense, excluding the cross-racial identification and the photo array, do not constitute scientific or expert testimony of such that would assist the jury in this matter. There is the video of the incident, there is testimony, and the jurors can weigh that evidence and determine what weight to give to the identification.” (Emphasis added.)
Immediately following the court’s ruling, defense counsel again presented an argument regarding cross-racial identification, but no other factor.
The court noted that the woman in the outlet store had a Hispanic sounding last name, but that it could not conclude from a Hispanic sounding last name that the parties are of different races or even different ethnic backgrounds.
The next day the defendant filed a motion for reconsideration arguing that there was evidence of DeJesus’ race, given her appearance. The court found that no evidence was presented to support the argument. The motion for reconsideration also addressed the method of presenting a photographic array. The court again stated that it previously had found that the array was not unnecessarily suggestive. The court denied the motion for reconsideration.
At the conclusion of evidence, during his final argument to the jury, defense counsel focused on evidence relevant to the factors that he contended undermined the reliability of DeJesus’ identification. In Guilbert, however, our Supreme Court stated that closing argument by defense counsel to the jury that “an eyewitness identification is unreliable ... is an inadequate substitute for expert testimony. In the absence of evidentiary support, such an argument is likely to be viewed as little more than partisan rhetoric.” State v. Guilbert, supra, 306 Conn. 244.
In its charge, the trial court here included extensive instructions on the factors identified as affecting the reliability of eyewitness identification.
The court identified State v. Marquez, supra, 291 Conn. 122, State v. McClendon, 248 Conn. 572, 730 A.2d 1107 (1999), overruled in part by State v. Guilbert, 306 Conn. 218, 253, 49 A.3d 705 (2012), and State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986), overruled in part by State v. Guilbert, 306 Conn. 218, 253, 49 A.3d 705 (2012); but see footnote 1 of this opinion; Velasco v. Commissioner of Correction, supra, 119 Conn. App. 164.
The court found that there was no evidentiary basis to consider the cross-racial identification factor and that its ruling on the defendant’s motion to suppress determined that Dejesus’ identification was not unnecessarily suggestive. The court made no mention of the unconscious transference factor. In his main brief on appeal, the defendant addressed the applicability of State v. Outing, supra, 298 Conn. 34, to this case. He did not address the factors affecting the reliability of eyewitness identification specifically related to the evidence in this case. In his reply brief, the defendant enumerated each of the factors in a generalized manner. We take this opportunity to remind all counsel that new arguments are not to be raised in a reply brief because it precludes the opposing party from responding. See State v. Rosario, 113 Conn. App. 79, 93, 966 A.2d 249, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009).
“We can sustain a right decision although it may have been placed on a wrong ground.” Stapleton v. Lombardo, 151 Conn. 414, 417, 198 A.2d 697 (1964).
See Pub. L. No. 104-191, 110 Stat. 1936 (1996).
In Ms brief, the defendant also argues that Ms right to due process under the fourteenth amendment was violated when the court permitted Smyth to testify. We decline to review tMs claim, as it is madequately briefed. See State v. Koslik, 137 Conn. App. 855, 858 n.7, 49 A.3d 1067, cert. denied, 307 Conn. 926, 55 A.3d 568 (2012).
In Ms reply brief, the defendant claims that the “core issue before tMs court is whether the state obtained the defendant’s medical records m violation of the Fourth Amendment, and if so, what is the proper remedy when the state illegally obtains medical records m a criminal prosecution?” TMs is not the claim raised M Ms main brief, wMch is that the court abused its discretion by permitting Smyth to testify. We do not address claims raised for the first time in a reply brief. See State v. Rosario, 113 Conn. App. 79, 93, 966 A.2d 249, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009).
The record makes no mention of whether the defendant wore eyeglasses during the trial. In its brief, however, the state represented that the defendant did not wear eyeglasses when the jury was present m the courtroom.
The subpoena was issued to Warden Jon Brighthaupt of the New Haven Correctional Center. It stated in relevant part: “By the authority of the state . . . you are hereby commanded to appear before the above court in criminal session at the above address on the date indicated above ... on which the above-entitled case is legally to be tried, to testily what you know in said case .... You are further commanded to bring with you and Produce . . . any and all [department] optometry information, including vision and any eyeglass prescription information for . . . Williams, Stanley—date of birth 09/11/1968 . . . .”
The defendant’s motion to strike Smyth’s testimony is brief and lacking in analysis. Although it contends that the defendant’s ECDPAA and fourth amendment rights were violated, it does not substantively address the fifth and fourteenth amendments to the federal constitution or the state constitution.
In denying the motion to strike Smyth’s testimony, the court also stated: “If there’s a separate issue concerning the record, then that may have to be taken up in a different forum, but, also, again, as to the initial motion and this motion to strike, there is a lot of presumably, I assume, and something might have happened, and information had been presented and this is my gist of it. But when asked for specifically what was said, it was not provided. So, this may very well be an issue, but the issue concerning whether it is a violation would have to be addressed in a different forum. So, that motion is denied.”
General Statutes § 52-143 (a) provides in relevant part: “Subpoenas for witnesses shall be signed by ... a commissioner of the Superior Court and shall be served by an officer, indifferent person .... The subpoena shall be served not less than eighteen hours prior to the time designated for the person summoned to appear, unless the court orders otherwise.”
On appeal, the defendant argues that the state should have sought a search warrant to obtain his records. In support of his argument, the defendant relies on the law regarding the exclusionary rule, noting that the purpose of the rule “is to deter future unlawful police conduct . . . .” (Internal quotation marks omitted.) Payne v. Robinson, 207 Conn. 565, 570, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988). This case does not involve an illegal search and seizure by police.
Section 164.512 (e) of title 42 of the United States Code “authorizes a covered entity ... to disclose private health information in judicial or administrative proceedings in response to an order of a court. § 164.512 (e) (1) (i). The regulation also allows the disclosure of such information in those proceedings in response to a subpoena, discovery request, or other lawful process, § 164.512 (e) (1) (ii), if the party seeking the information either notifies the patient (or at least makes a good faith effort to do so) . . . .” (Internal quotation marks omitted.) Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923, 925 (7th Cir. 2004).
The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Unlike the defendant’s abuse of discretion claim here, the claim in Legrand was whether “the state’s use of a subpoena, rather than a search warrant, violated his federal and state constitutional rights”; State v. Legrand, supra, 129 Conn. App. 244; which is a question of law.
The are other exceptions to a warrant requirement. See, e.g., Donovan v. Lone Steer, Inc., 464 U.S. 408, 415, 104 S. Ct. 769, 78 L. Ed. 2d 567 (1984) (defenses to valid administrative subpoena do not include warrant as condition precedent); See v. Seattle, 387 U.S. 541, 544, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967) (administrative agency’s subpoena of corporate books under fourth amendment must be limited in scope, relevant in purpose, specific in directive); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208, 66 S. Ct. 494, 90 L. Ed. 614 (1946) (corporate records protected under fourth amendment only against unreasonable disclosures).
Although the defendant’s motion for a new trial stated that he was relying on various state and federal constitutional provisions, his memorandum of law focused exclusively on State v. Outing, supra, 298 Conn. 34.
In the defendant’s motion for reconsideration of the court’s denial of his motion to strike Smyth’s testimony and for a new trial, the defendant stated that the motion was filed “[pjursuant to the Fourth, Fifth and Fourteenth Amendments of the United States Constitution; Article 1, Section 8 of the Connecticut Constitution, and HIPAA . . . .” The defendant, however, did not provide any written analysis as to his constitutional claims.
Attached to the defendant’s September 15,2010 motion for reconsideration to strike Smyth’s testimony and for a new trial was a letter to defense counsel from Nancy Kase O’Brasky of the department’s legal affairs unit, which states in part: “After making inquiries into the release of [the defendant’s] optometry records, it is evident that the records were, indeed,
The propriety of the department’s having faxed the defendant’s records to the office of the state’s attorney is not before us, nor are the issues of whether the department complied with HIPAA or the subpoena. Nothing in this opinion should be construed as pertaining to those issues.
Reference
- Full Case Name
- STATE OF CONNECTICUT v. STANLEY WILLIAMS
- Cited By
- 12 cases
- Status
- Published