State Of Conn. v. Outing.

• Decision Date: 31 August 2010
• Docket Number: No. 17707.,17707.
• Citation: 298 Conn. 34,3 A.3d 1
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. J'Veil OUTING.

298 Conn. 34

3 A.3d 1

STATE of Connecticut

v.J'Veil OUTING.

No. 17707.

Supreme Court of Connecticut.

Argued March 25, 2009.

Decided Aug. 31, 2010.

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James B. Streeto, assistant public defender, for the appellant (defendant).

Nancy L. Chupak, senior assistant state's attorney, with whom were Beth Baran, senior assistant state's attorney, and, on the brief, Michael Dearington, state's attorney, for the appellee (state).

Lisa J. Steele, David M. Siegel and Yvonne Chan filed a brief for the New England Innocence Project as amicus curiae.

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js. ^*

KATZ, J.

The defendant, J'Veil Outing, directly appeals ¹ from the trial court's judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a(a). ² The defendant claims that the trial court improperly: (1) denied his motion to suppress the testimony of two eyewitnesses who had identified the defendant as the shooter; (2) barred him from presenting certain expert testimony at the hearing on his motion to suppress on the reliability of eyewitness identifications; (3) prohibited the defendant's expert from providing that same testimony at trial; (4) refused to order the disclosure of certain mental health records of a state's witness; and (5) denied the defendant's motion for a mistrial due to the state's purported violation of the trial court's sequestration order. In addition, the defendant claims that the assistant state's attorney engaged in prosecutorial impropriety during her examination of certain witnesses and during closing argument, thereby depriving the defendant of his constitutional due process right to a fair trial. We reject the defendant's claims and, accordingly, we affirm the trial court's judgment.

The jury reasonably could have found the following facts. At approximately 6:50 p.m. on June 23, 2005, Nadine Crimley was walking in a northerly direction on Canal Street in New Haven, pushing her infant son in a stroller. To her left, she saw her brother, Ray Caple, standing on the porch of her residence at 150 Canal Street. As Crimley walked up the street, she saw the defendant, whom she previously had seen in the neighborhood, pass her on his bicycle. Another unidentified man rode a bicycle in front of the defendant. Crimley then turned her attention back to her son. When she heard a series of popping noises, she looked up and saw the defendant, who was about ten feet away from her, firing a gun at the victim, Kevin Wright. The victim fell to the ground, and the defendant ran from the scene.

Caple, who had gone to high school with the defendant and had known him for three and one-half years, also watched the defendant as he rode his bicycle up Canal Street. As Caple watched, the defendant moved his right hand toward his waist. Caple believed that the defendant was reaching for a gun and was going to shoot him, but decided against doing so because Caple was holding his two year old daughter. Caple's mother and the victim were inside the residence at 150 Canal Street. Just after the defendant passed the residence on his bicycle, the victim exited through the back door of the residence, retrieved his bicycle from the backyard and walked with it in an easterly direction on Gregory Street toward its intersection with Canal Street. As Caple stood on the porch, he heard a gunshot and the sound of a bicycle falling to the ground. When he looked around the corner of the porch, he observed Crimley and her son standing very close to the defendant, and he also saw the defendant, who had dismounted from his bicycle, fire three more shots at the victim. The defendant then ran away, leaving his bicycle in the street. Caple ran to the victim, who was unresponsive. The victim died from a single gunshot wound to the chest.

Shortly, after 10 p.m. on the day of the shooting, Crimley gave a statement to the New Haven police in which she indicated that she had been able to get a good look at the shooter and would be able to identify him. On June 27, 2005, four days after the shooting, Stephen Coppola, a New Haven police detective, interviewed Crimley and presented her with an array of eight photographs, including one of the defendant. Crimley identified the defendant as the shooter and signed and dated the photographic array. Coppola tape-recorded his interview of Crimley. On the same day, Coppola also tape-recorded a statement from Caple and presented him with a second photographic array. Caple also identified the defendant as the shooter and signed and dated the photographic array.

Prior to trial, both Caple and Crimley recanted their statements to the police and their identifications of the defendant, claiming that they had been pressured by the police into giving the statements and making the identifications. Thereafter, the defendant filed motions to suppress the identification evidence, claiming that the evidence was unreliable and the product of an unnecessarily suggestive police identification procedure. At a hearing on the defendant's motions, both Crimley and Caple testified that they did not know who had killed the victim, that they had been pressured by the police to give false statements about the events surrounding the shooting, and that the police had pressured them to falsely identify the defendant as the shooter. Crimley and Caple acknowledged that they were extremely frightened about being called as witnesses for the state and identifying the defendant as the shooter. Coppola and Alfonso Vasquez, a New Haven police detective who had been present during Coppola's interviews of Crimley and Caple, testified that each of the witnesses had identified the defendant as the shooter by selecting the defendant's photograph from the photographic array spontaneously and without hesitation. The two detectives unequivocally denied that they had pressured or influenced either Crimley or Caple in any way.

At the conclusion of the detectives' testimony, the state maintained that the tape-recorded statements that Crimley and Caple had given to the police met the requirements for admissibility set forth in State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). ³ The trial court found that the testimony of Crimley and Caple that they had been pressured to give false statements and to falsely identify the defendant as the shooter was not credible. The court further concluded that the statements that they had given to the police met the Whelan admissibility requirements for purposes of the suppression hearing.

Thereafter, at a continuation of the suppression hearing, the defendant made an offer of proof regarding the testimony of his expert witness, Jennifer Dysart, concerning the reliability of eyewitness identifications. The state objected to the testimony, and the court sustained in part and overruled in part the state's objection to Dysart's proffered testimony. Dysart thereafter offered her opinion that the identification procedures used generally were not reliable. The trial court thereafter denied the defendant's motions to suppress the photographic identifications that had been made of the defendant by Crimley and Caple.

At trial, Crimley and Caple testified that the police had pressured them to give false statements and to falsely identify the defendant as the shooter. They further testified that the defendant definitely was not the shooter and that they did not know who had shot the victim. Upon the state's motion pursuant to Whelan, the trial court admitted redacted tape recordings of the statements Crimley and Caple had given to the police as prior inconsistent statements. ⁴ The trial court also admitted as exhibits copies of the photographic arrays that Crimley and Caple had signed and dated. The defendant did not call Dysart as a witness at trial.

Thereafter, the jury found the defendant guilty of murder, and the trial court rendered judgment in accordance with the verdict, sentencing the defendant to a term of imprisonment of fifty years. This direct appeal followed. ⁵ Additional facts and procedural history will be set forth as necessary.

I

We first turn to the defendant's claims regarding the eyewitness testimony. The defendant contends that the trial court improperly denied his motion to suppress the identifications by Crimley and Caple because, contrary to the court's conclusions, the evidence established that the identification procedure was unnecessarily suggestive and unreliable. He further contends that the trial court improperly precluded him from presenting certain of Dysart's proffered testimony at the suppression hearing regarding the unreliability of eyewitness identification. Finally, he contends that the trial court improperly precluded him from introducing Dysart's testimony on that subject at trial. We reject the first claim on the merits, we find it unnecessary to reach the second claim, and we conclude that the third claim was not preserved for appellate review.

The following additional facts are necessary to our resolution of these claims. The defendant notified the court and the state that he intended to present the testimony of Dysart, an associate professor of psychology at the John Jay College of Criminal Justice and an expert on the issue of eyewitness identifications. By way of a proffer, Dysart testified that, in her opinion, there is an undue risk of misidentification resulting from the identification procedure if, as occurred in the present case: (1) the photographs are shown to the witness simultaneously rather than sequentially; (2) after advising the eyewitness that the perpetrator may or may not be in the photographic array, the police provide the witness with a form that does not contain a line on...