State v. Echols, 12716

• Citation: 203 Conn. 385,524 A.2d 1143
• Decision Date: 05 May 1987
• Docket Number: No. 12716,12716
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Winston ECHOLS.

Page 1143

524 A.2d 1143

203 Conn. 385

STATE of Connecticut v. Winston ECHOLS.

No. 12716.

Supreme Court of Connecticut.

Argued Jan. 6, 1987.

Decided May 5, 1987.

Kenneth Rosenthal, Asst. Public Defender, with whom, on the brief, were Donald Dakers and Joette Katz, Public Defenders, and Joseph G. Bruckmann, Asst. Public Defender, for appellant (defendant).

Judith Rossi, Deputy Asst. State's Atty., with whom, on the brief, were Guy W. Wolf III and James G. Clark, Asst. State's Attys., for appellee (State).

Before PETERS, C.J., and SHEA, DANNEHY, SANTANIELLO and CORRIGAN, JJ.

SANTANIELLO, Associate Justice.

The defendant, Winston Echols, was found guilty by a jury of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A) ¹ and of sexual assault in the first degree in violation of General Statutes § 53a-70(a). ² He received a total effective sentence of twenty years. On appeal, he claims that the trial court erred in: (1) excluding evidence of a third party lookalike who had committed a similar crime in the vicinity of the present crime; (2) precluding cross-examination on a contemporaneous misidentification of the defendant; (3) refusing to strike the victim's as well as a police officer's testimony despite the destruction of the victim's taped statements; (4) failing to grant the defendant a conclusive presumption with respect to physical evidence consumed in tests performed by the state, precluding the defendant from calling a witness to testify to the circumstances surrounding the transfer of the physical evidence and failing to preclude the state from relying on the second set of test results; (5) failing to suppress the out-of-court identification of the defendant or, in the alternative, failing to give an instruction on drawing an adverse inference with respect to that identification; and (6) denying his motions for acquittal and for a new trial premised on claimed prosecutorial misconduct. We find error on the defendant's first claim and remand the case for a new trial. We therefore need not consider the defendant's remaining claims of error. ³

The facts relevant to the disposition of this appeal are as follows: On August 13, 1984, B, a female college student, was walking home from work at approximately 9:30 p.m. As she walked by the Prince Street School, an abandoned elementary school near the corner of Church Street South and Prince Street in New Haven, she was grabbed from behind, threatened with a knife placed to her throat and dragged over a grassy area to several bushes near the school, where she was sexually assaulted. The area was fairly well lit, and B was able to get a good look at her assailant, whom she described as a dark-complexioned black male, between the age of twenty-three and thirty years old, approximately five feet seven to five feet nine inches tall with a short "afro" haircut, large lips and a "Neanderthalish," protruding brow bone.

Four days after the assault, B went to the New Haven police department for the purpose of viewing photographs in an attempt to identify her assailant. While at the station, she was asked by Detective Anthony DiLullo to examine two ring bound volumes, or "trays," of photographs. Each tray, organized according to a type of crime, contained approximately 200 photographs of black males, with each page containing a maximum of four photographs. The first tray, No. 29, contained photographs of persons charged with burglary, while the second tray, No. 116, was a "general crime" tray. B selected a photograph of the defendant from the first tray, but was unable to identify the defendant positively as her assailant because she felt the skin tone of the person in the photograph was too light. She did, however, positively identify the defendant as her assailant from a more recent photograph chosen from the second tray. Based on this identification, the defendant was arrested.

Approximately six months prior to this incident, on February 9, 1984, another woman, H, had been sexually assaulted in her apartment located in the general vicinity of where the August 13 assault had occurred. At that time, H described her assailant as a dark-complexioned black male, about five feet eight inches tall with a thin build, short hair and very thick lips. She subsequently remembered that her assailant had a "large forehead bone" which made his eyes appear to be set forward.

After B positively identified the defendant from his photograph, DiLullo contacted H, suspecting that the defendant had been the assailant in the February assault. DiLullo requested that H accompany him to the police department to view photographs. There, H was shown tray No. 116, the second photo tray shown to B, and from that tray, H positively identified the defendant, stating that there was no doubt in her mind that he was her assailant. The defendant was subsequently charged with the February assault. The defendant, however, could not have committed this crime because he was incarcerated in the Hartford Correctional Center on February 9, 1984. Accordingly, the charges stemming from the February incident were nolled. At trial, the defendant attempted to introduce evidence of H's misidentification of the defendant, first during the cross-examination of DiLullo and then later during his case-in-chief. The trial court, however, refused to allow the defendant to introduce the misidentification into evidence on either occasion.

For the disposition of this appeal, we need only discuss the first claim of error proffered by the defendant; namely, that the trial court erred in precluding evidence of a third party lookalike who had committed a similar crime.

At trial, defense counsel attempted to introduce evidence of H's identification during cross-examination of Detective DiLullo in an attempt to discredit the photo identification procedure concerning the August assault. Counsel claimed that because H had identified the defendant as her assailant in the February incident when, in fact, the defendant could not have committed the assault due to his incarceration at that time, the identification procedure was suspect. ⁴ The state objected, and the trial court sustained the objection, ruling that any subsequent misidentification was completely irrelevant to this case. ⁵

During this discussion, defense counsel indicated that he wished to introduce this evidence as part of his case-in-chief in order to prove that another individual fitting the description of the defendant might have committed the assault. The defendant's attorney argued that because the descriptions of the February and August assailants were so similar that DiLullo suspected the same person had committed both crimes, and because H had mistakenly identified the defendant from the same photograph that B used to identify the defendant, there could have been a third party lookalike who had committed both crimes. ⁶ Again, the trial court ruled the evidence inadmissible, stating that it was irrelevant. ⁷

The defendant claims that the trial court erred in refusing to allow the defendant to introduce evidence of H's misidentification in his case-in-chief. We agree. ⁸

A defendant's right to present witnesses and offer evidence is a fundamental element of due process of law. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967); see Chambers v. Mississippi, 410 U.S. 284, 294, 302, 93 S.Ct. 1038, 1045, 1049, 35 L.Ed.2d 297 (1973). Both this state and other jurisdictions have recognized that a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. See, e.g., State v. Burge, 195 Conn. 232, 252, 487 A.2d 532 (1985); Siemon v. Stoughton, 184 Conn. 547, 555-56, 440 A.2d 210 (1981); State v. Giguere, 184 Conn. 400, 405, 439 A.2d 1040 (1981); State v. Gold, 180 Conn. 619, 646, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980); State v. Marshall, 166 Conn. 593, 601, 353 A.2d 756 (1974); see also United States v. Armstrong, 621 F.2d 951, 953 (9th Cir.1980); Pettijohn v. Hall, 599 F.2d 476, 480 (1st Cir.), cert. denied, 444 U.S. 946, 100 S.Ct. 308, 62 L.Ed.2d 315 (1979); United States v. Robinson, 544 F.2d 110, 113 (2d Cir.1976), cert. denied, 434 U.S. 1050, 98 S.Ct. 901, 54 L.Ed.2d 803 (1978); Holt v. United States, 342 F.2d 163, 165-66 (5th Cir.1965); People v. Flowers, 644 P.2d 916, 918 (Colo.), appeal dismissed, 459 U.S. 803, 103 S.Ct. 25, 74 L.Ed.2d 41 (1982); Kucki v. State, 483 N.E.2d 788, 791 (Ind.App.1985); Commonwealth v. Jewett, 392 Mass. 558, 562, 467 N.E.2d 155 (1984). The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged; Siemon v. Stoughton, supra. State v. Giguere, supra. It is not enough to show that another had the motive to commit the crime; State v. Marshall, supra; State v. Perelli, 125 Conn. 321, 328, 5 A.2d 705 (1939); nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. Brown v. State, 275 Ind. 227, 231, 416 N.E.2d 828 (1981).

The presentation and admissibility of such evidence is governed by the rules of relevancy. See State v. Burge, supra; State v. Giguere, supra, 184 Conn. at 405-406, 439 A.2d 1040; State v. Gold, supra, 180 Conn. at 645-46, 431 A.2d 501; State v. Marshall, supra, 166 Conn. at 601-602, 353 A.2d 756; see also Commonwealth v. Jewett, supra; cf. Chambers v. Mississippi, supra, 410 U.S. at 302, 93 S.Ct. at 1049. We have often stated that "[e]vidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case.... 'One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or...