State v. Artis

• Decision Date: 10 July 2012
• Docket Number: AC32048
• Court: Connecticut Court of Appeals
• Parties: STATE v. ARTIS

STATE v. ARTIS

AC32048

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Dated: July 10, 2012

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DISSENT

LAVINE, J., concurring in part and dissenting in part. I agree with the majority that the trial court properly denied the motion for a judgment of acquittal, postverdict, filed by the defendant, Troy Artis, as to the charge of accessory to assault in the first degree by means of a dangerous instrument and, therefore, join in part I of the majority opinion. Because I believe that the trial court did not abuse its discretion in admitting the victim's identification of the defendant and that, even if it did, such error was harmless beyond a reasonable doubt, I respectfully dissent from the remainder of the majority opinion.

IRELIABILITY OF THE VICTIM'S IDENTIFICATIONS

I do not believe that the trial court abused its discretion in admitting the victim's out-of-court and in-court identifications as reliable, even though the identification procedure was unnecessarily suggestive. The record adequately supports the subordinate facts found by the court in its meticulous and nuanced oral decision. Additionally, in accordance with the reliability factors set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), and the totality of the circumstances, the defendant has not met his burden of showing that the court's ultimate conclusion was unreasonable.

The standard of review governing the admissibility of an out-of-court identification is well settled. "[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court's ultimate inference of reliability was reasonable. . . . [T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. . . . 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 determi-nations, 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.'' (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 547-48, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006). ''The exclusion of evidence from the jury is . . . a drastic sanction, one that is limited to identification testimony which is manifestly suspect. . . . Absent a very substantial likelihood of irreparable misidentification, [w]e are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.'' (Internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 159-60, 665 A.2d 63 (1995); see also Manson v. Brathwaite, supra, 432 U.S. 116; State v. Outing, 298 Conn. 34, 60-61, 3 A.3d 1 (2010) (''At a suppression hearing, a court is required only to determine the due process question of whether the eyewitness identifications are so lacking in reliability as to be inadmissible. . . . Thus, the trial court serves a constitutional gatekeeping function rather than as finder of fact making a credibility assessment of the eyewitness.'' [Citations omitted; internal quotation marks omitted.]), cert. denied, U.S. , 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011).

The majority largely ignores the findings of the trial court and substitutes its judgment in place of the court's findings. Contrary to the majority's conclusion that many of the court's findings were clearly erroneous, I believe that they are adequately supported by the record. See State v. Wheat, 52 Conn. App. 115, 116, 725 A.2d 993 (''[w]e do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses'' [internal quotation marks omitted]), cert. denied, 249 Conn. 901, 732 A.2d 777 (1999); see also State v. Sanchez, 128 Conn. App. 1, 9 n.4, 15 A.3d 1182 (''[w]e must defer to the [finder] of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude'' [internal quotation marks omitted]), cert. granted on other grounds, 301 Conn. 919, 21 A.3d 465 (2011). Although appellate courts reviewing the reliability of identification evidence ''defer less than [they] normally do to the . . . fact finding of the trial court''; (internal quotation marks omitted) State v. Marquez, 291 Conn. 122, 136 n.13, 967 A.2d 56, cert. denied, U.S. , 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009); this court cannot ''disturb the findings of the trial court as to subordinate facts unless the record reveals clear andmanifest error.'' (Internal quotation marks omitted.) State v. Ledbetter, supra, 275 Conn. 548. In my view, such clear and manifest error did not occur in this case.¹

"[R]eliability is the linchpin in determining the admission of identification testimony . . . . To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [victim] to view the criminal at the time of the crime, the [victim's] degree of attention, the accuracy of [the victim's] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification].'' (Internal quotation marks omitted.) Id., 553. Our Supreme Court recently held that this standard, originally derived from Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), and reaffirmed in Manson v. Brathwaite, supra, 432 U.S. 114, applies under both the federal and state constitutions. State v. Ledbetter, supra, 275 Conn. 559-60, 568-69.

AThe Victim's Opportunity to Observe the Assailant

Regarding the first reliability factor, the victim's opportunity to observe the assailant at the time of the crime, the court found that there was sufficient lighting for the victim to observe the defendant's face. As noted by the majority, Jose Rivera, a Hartford police officer, testified that, in his experience, the area where the incident occurred is well lit. Hector Robles, another Hartford police officer, testified that he saw a scuffle, which included two women in red minidresses, from approximately 150 feet away and that, after breaking up the fight, three people entered a newer model gray Infiniti automobile and drove away. Later in the evening, Robles discovered a trail of blood splatter, which he followed ''down to the northeast corner of High and Allyn'' Streets in Hartford near the site of the altercation at issue. Robles' ability to observe both the scuffle from 150 feet away and the trail of blood supports the court's finding that the area was sufficiently well lit for the victim to see the defendant's face. Additionally, as explained by the trial court, the victim's ability to observe the make and color of the car and his ability to describe the assailant's face as freckled ''is also indicative of sufficient opportunity and illumination to observe from a slight distance of at most a few feet.'' Therefore, there is clearly adequate support for the court's finding that there was sufficient lighting for the victim to observe the defendant's face.

The court also found, as to the first factor, that the victim ''had a couple of beers'' over the period of an hour and one-half and that there was no evidence that the victim's ''capacity...