State v. Dickson, SC 19385

CourtSupreme Court of Connecticut
Writing for the CourtROGERS, C. J.
Docket NumberSC 19385
PartiesSTATE OF CONNECTICUT v. ANDREW DICKSON
Decision Date09 August 2016

STATE OF CONNECTICUT
v.
ANDREW DICKSON

SC 19385

Supreme Court of Connecticut

Argued December 11, 2015
August 9, 2016


Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

Andrew S. Liskov, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph T. Corradino, senior assistant state's attorney, for the appellee (state).

Charles D. Ray, James L. Brochin, Marques S. Tracy and Laura E. Sedlak filed a brief for The Innocence Project as amicus curiae.

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Opinion

ROGERS, C. J. The issue that we must resolve in this certified appeal is whether we should overrule this court's holding in State v. Smith, 200 Conn. 465, 469, 512 A.2d 189 (1986),1 and hold that inherently suggestive in-court identifications are inadmissible even in the absence of a suggestive pretrial identification procedure. The defendant, Andrew Dickson, was charged with a variety of offenses after he shot the victim, Albert Weibel, during an attempted robbery. Before trial, the defendant filed a motion to preclude Weibel from making an in-court identification of the defendant on the ground that in-court identification procedures are unnecessarily suggestive. In the alternative, the defendant requested that the trial court require that Weibel select him from a group of individuals of similar appearance. The trial court denied the motion pursuant to Smith, and Weibel identified the defendant as his assailant in court. The jury found the defendant guilty of assault in the first degree and conspiracy to commit robbery in the first degree, and the trial court rendered judgment accordingly.

Thereafter, the defendant appealed to the Appellate Court claiming, among other things, that the trial court had abused its discretion by denying his motion to preclude Weibel's in-court identification of him or, in the alternative, to order an alternative identification procedure. The Appellate Court rejected the defendant's claim pursuant to Smith; State v. Dickson, 150 Conn. App. 637, 644-47, 91 A.3d 958 (2014); and, having also rejected the defendant's other claims on appeal, affirmed the judgment of conviction. Id., 654.

We then granted the defendant's petition for certification to appeal, limited to the following issues: (1) "Did the Appellate Court properly determine that the in-court identification procedure used at trial was proper under this court's decision in State v. Smith, [supra, 200 Conn. 465], and, if so, should the Smith precedent be overturned?"; and (2) "If we conclude that the in-court identification was improper, was the impropriety harmless in light of the other state's evidence?" State v. Dickson, 314 Conn. 913, 100 A.3d 404 (2014). We conclude that, contrary to our holding in Smith, in cases in which identity is an issue, in-court identifications that are not preceded by a successful identification in a nonsuggestive identification procedure2 implicate due process principles and, therefore, must be prescreened by the trial court.3 We also conclude that the admission of the in-court identification here was harmless and, accordingly, affirm the judgment of the Appellate Court on this alternative ground.

The record reveals the following facts that the jury reasonably could have found and procedural history. Akeem Lyles arranged to meet Weibel and Matthew

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Shaw at Terrace Circle in Bridgeport on the night of January 9, 2010, for the purpose of selling them an all-terrain vehicle. Shortly before the arranged meeting time, Lyles met with Jovanni Reyes and the defendant in a nearby apartment, explained that he planned to rob Weibel and Shaw and asked Reyes and the defendant if they would help him. Reyes and the defendant agreed. The three men left the apartment armed with guns at approximately 9:30 p.m. At that point, Weibel, who was in a pickup truck with Shaw at the arranged meeting place, called Lyles. Lyles told Weibel that he was outside in back of the building with the all-terrain vehicle and that Weibel should come and "check it out." As Weibel approached Lyles, Lyles put a gun to Weibel's head and demanded money. Weibel then turned around and saw Reyes and the defendant with guns. They also demanded money. As Weibel covered his head, called for help and attempted to return to the pickup truck, the men hit him, demanded money and took his cell phone.

Lyles then broke from the group and approached the pickup truck. He tapped on the window with his gun and pointed the gun at Shaw's head. Shaw got out of the pickup truck and Lyles grabbed him, threw him against a parked car and demanded "the money." When Shaw told Lyles that he did not have the money, Lyles took Shaw's cell phone and wallet. Lyles also took between $40 and $50, an iPod and a global positioning system from the pickup truck. Someone then yelled "this is taking too long" and Lyles and Reyes ran from the scene. At that point, the defendant held a gun to Weibel's head, threw him against a dumpster near the pickup and said, "You're a dead man." The defendant then shot Weibel in the leg and neck. Weibel was seriously injured but survived. When Lyles later asked the defendant why he had shot Weibel, the defendant replied, "because we didn't get any money."

Approximately one year after the shooting, Weibel viewed a police photographic array that included a photograph of the defendant, but he was unable to identify the defendant as his assailant. Both Weibel and Shaw, however, were able to identify Lyles from a photographic array as the person who had first approached Weibel and who had approached Shaw while he was in the pickup truck.

The defendant was arrested and charged with numerous offenses arising from the incident. Before trial, the defendant filed a motion in limine in which he contended that any in-court identification of the defendant by Weibel would be so highly and unnecessarily suggestive and conducive to an irreparable misidentification of the defendant as to violate the defendant's due process rights under article first, § 8, of the Connecticut constitution. In the alternative, the defendant, who is African-American, requested that the court order that Weibel be required to select him from a group of individuals

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of similar age, weight, height, complexion and hair style. The defendant orally renewed the motion in limine after the jury was selected and before the presentation of evidence. The trial court denied the motion.

At trial, the prosecutor asked Weibel if he saw the person who had shot him in court. Weibel responded in the affirmative and identified the defendant, who was sitting next to counsel at the defense table. Except for a judicial marshal who was in uniform, the defendant was the only African-American male in the courtroom. The jury found the defendant guilty of assault in the first degree and conspiracy to commit robbery in the first degree, and the trial court rendered judgment accordingly.

On appeal to the Appellate Court, the defendant claimed that the trial court had violated his due process rights under the fifth and fourteenth amendments to the federal constitution when it denied his motion in limine.4 State v. Dickson, supra, 150 Conn. App. 642-43. The Appellate Court rejected this claim pursuant to State v. Smith, supra, 200 Conn. 469-70; State v. Dickson, supra, 644; and affirmed the judgment of conviction. State v. Dickson, supra, 654. This appeal followed.

The defendant contends that the Appellate Court improperly concluded that Weibel's in-court identification of the defendant as his assailant was admissible under Smith.5 In the alternative, he claims that this court should overrule Smith and hold that first time in-court identifications trigger due process protections because they are inherently suggestive and are the result of state action.6 Finally, he claims that the state cannot prove that the improper admission of the in-court identification was harmless beyond a reasonable doubt.

I
DEFENDANT'S CLAIM THAT FIRST TIME IN-COURT
IDENTIFICATIONS IMPLICATE DUE
PROCESS PRINCIPLES

To provide context for the defendant's claims, we begin our analysis with an overview of the legal principles governing the admission of eyewitness identification testimony. In the absence of unduly suggestive procedures conducted by state actors, the potential unreliability of eyewitness identification testimony ordinarily goes to the weight of the evidence, not its admissibility, and is a question for the jury. See Perry v. New Hampshire, U.S. , 132 S. Ct. 716, 730, 181 L. Ed. 2d 694 (2012) ("we hold that the [d]ue [p]rocess [c]lause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement"). Principles of due process require exclusion of unreliable identification evidence that is not the result

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of an unnecessarily suggestive procedure "[o]nly when [the] evidence is so extremely unfair that its admission violates fundamental conceptions of justice . . . ." (Citation omitted; internal quotation marks omitted.) Id., 723, citing Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959) (due process prohibits state's knowing use of false evidence because such use violates any concept of ordered liberty). To assist the jury in determining what weight to give to an eyewitness identification that is not tainted by an unduly suggestive identification procedure, the defendant is entitled as a matter of state evidentiary law to present expert testimony regarding a variety of factors that can affect the reliability of such testimony. State v. Guilbert, 306 Conn. 218, 248, 49 A.3d 705 (2012) ("[an] expert should be permitted to testify . . . about factors that generally have an adverse effect on the reliability of eyewitness identifications and are...

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