State v. Elliott

Decision Date19 August 1986
Docket NumberNo. 3219,3219
Citation8 Conn.App. 566,513 A.2d 1285
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. John Joseph ELLIOTT.

Francis T. Mandanici, New Haven, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on brief, were Donald A. Browne, State's Atty. and Edward J. Caldwell, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and HULL and SPALLONE, JJ.

DUPONT, Chief Judge.

After a trial to a jury, the defendant was convicted of two counts of robbery in the first degree, in violation of General Statutes § 53a-134(a)(4), and two counts of unlawful restraint in the first degree, in violation of General Statutes § 53a-95(a). The defendant appeals from the judgment rendered, claiming error (1) in the trial court's denial of his motion to suppress identification evidence, (2) in the exclusion of testimony by an expert witness concerning eyewitness identification, (3) in the failure to instruct the jury on the dangers of misidentification, (4) in the court's allegedly imposing, sua sponte, an increased sentence on the defendant three days after giving him a legal sentence, (5) in the denial of the defendant's motion for a mistrial filed in response to the state's alleged suppression of exculpatory evidence, and (6) in the allegedly ineffective assistance rendered at trial by defense counsel. 1

The jury could have reasonably found certain relevant facts based upon the evidence presented. A young adult woman returned to her home and, as she drove her car into the driveway, she saw an unidentified male standing near a car. As she exited her car, the male produced a gun and forcibly led her into her house. Once inside the house, the assailant tied the woman's hands behind her back and left her on the bed in her room. The assailant then searched her room, taking her jewelry box and some money in the process. The assailant next led her through other parts of the house, which he had examined prior to her arrival, in a further search for valuables. He returned to his car, taking the victim with him, in order to deposit the stolen merchandise. He then returned to the house, went upstairs to the master bedroom and forced her to lie face down on the bed. The assailant tied her up again, including handcuffing her hand to her foot. Throughout this time, she was able to observe her assailant several times at extremely close range.

As he was searching the bedroom, the victim's mother returned home. As she was looking through the house for her daughter, the assailant pointed the gun at her and forcibly took her upstairs to the same room where he had left her daughter. He also forced her to lie face down on the bed next to her daughter while he tied her up. The assailant then searched the room for valuables, asking the victims several questions in the process. Although they were tied up, both victims were able to observe their assailant during this time at close range and in good lighting conditions. After completing his search for valuables, the assailant left the premises. After freeing herself, the mother reported the incident to the police.

During the course of the police investigation, the mother viewed several photographic arrays containing pictures of possible suspects. Approximately four months later, she selected a photograph of the defendant as her assailant from a photographic array of eight black and white photos. She also made an in-court identification of the defendant at trial. Although the daughter selected several photographs which "looked like" her assailant, she was unable to make a positive photographic identification of the defendant. She was, however, able to make an in-court identification of the defendant.

The defendant's first claim of error is that the trial court erred in denying his motion to suppress the identification evidence. The defendant took an exception to that denial. The defendant challenges the reliability of the identifications and also claims that they were made under suggestive circumstances. Specifically, the defendant claims that the mother's identification was suggestive because the photograph she selected was the only one in the array with a white border, all the other photographs having black borders, and because it was the only one with any information on the back of the photograph. As for the in-court identification made by her daughter, the defendant claims that it was unnecessarily suggestive because it was made while the defendant was either in the courthouse or sitting at counsel table. 2

"Our courts have repeatedly held that a defendant who attempts to suppress identification evidence has the burden of proving that the identification resulted from an unconstitutional procedure. See State v. Aversa, 197 Conn. 685, 693, 501 A.2d 370 (1985); State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984); State v. McKnight, 191 Conn. 564, 570, 469 A.2d 397 (1983); State v. Anderson, 6 Conn.App. 15, 21 n. 4, 502 A.2d 446 (1986). In order to determine whether the identification procedures violated the defendant's due process rights, a case by case inquiry must be made as to (1) whether the identification procedures were unnecessarily suggestive, and, if so, (2) whether the identification was nevertheless reliable based upon an examination of the totality of the circumstances. See State v. Findlay, 198 Conn. 328, 336-37, 502 A.2d 921 (1986); State v. Amarillo, 198 Conn. 285, 291, 503 A.2d 146 (1986); State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985)." State v. Frazier, 7 Conn.App. 27, 34, 507 A.2d 509 (1986); see also State v. Vaughn, 199 Conn. 557, 563, 508 A.2d 430 (1986); State v. Wiggins, 7 Conn.App. 95, 99, 507 A.2d 518 (1986).

A review of the record in this case indicates that the identification procedures employed by the police were not impermissibly suggestive. 3 The defendant's claim, that the mother's identification was made under suggestive circumstances because of differences in his photograph, is without merit. Differences in the size and color of the photographs presented in an array, in and of themselves, do not make the array, or the individual photographs, impermissibly suggestive. See State v. Fullwood, supra, 193 Conn. 246-47, 476 A.2d 550; State v. McKnight, supra, 191 Conn. 571, 469 A.2d 397; State v. Davis, 175 Conn. 250, 254, 397 A.2d 1347 (1978). Furthermore, this victim testified that she did not notice the different border on the defendant's photograph in making her identification, but only took notice of the difference when it was pointed out to her on cross-examination by defense counsel.

The defendant's claim that the daughter's identification of the defendant was made under suggestive circumstances is similarly unpersuasive. It is undisputed that she failed to make a pretrial identification of the defendant. Her positive identification of the defendant as her assailant came at the close of her direct testimony, and did not involve an identification procedure employed by the police. On cross-examination, she testified that she first recognized the defendant when she entered the courtroom earlier that day in order to testify on the motion to suppress identification evidence. "The general rule regarding in-court identification of a defendant where there has been no pretrial identification is that it is admissible within the discretion of the trial court, with the weight of the identification to be determined by the jury. United States v. Samalot Perez, 767 F.2d 1, 3 (1st Cir.1985)." State v. Frazier, supra, 7 Conn.App. 37, 507 A.2d 509; see also State v. Smith, 200 Conn. 465, 469, 512 A.2d 189 (1986). The trial court was correct in denying the defendant's motion to suppress the identification evidence in this case.

The defendant's second claim of error is that the trial court erred in refusing to admit into evidence the testimony of an expert witness concerning eyewitness identification. At trial, the defendant sought to introduce the expert testimony in order to illustrate the danger of misidentification associated with eyewitness identification. The defendant argues that the testimony should have been allowed in order to balance what the defendant claims was the state's bolstering of the victims' identifications. The defendant argues that because the state introduced evidence that the victims were an artist and a teacher, respectively this elevated their testimony to that of "quasi-experts" and, therefore, in the totality of the circumstances, the expert's testimony on the dangers of misidentification should have been allowed.

As a general rule, the test for the admissibility of expert testimony is whether the witness offered as an expert has any particular knowledge or experience which renders the opinion founded on such knowledge or experience an aid to the court or the jury in determining the question in issue. See State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985); State v. Apostle, 8 Conn.App. 216, 232, 512 A.2d 947 (1986). In State v. Kemp, 199 Conn. 473, 474-75, 507 A.2d 1387 (1986), our Supreme Court addressed the issue of whether the trial court erred in excluding expert testimony on the potential for inaccuracy in eyewitness identification of criminal participants. In reviewing the trial court's decision, the Supreme Court stated that "[t]he trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. State v. Girolamo, 197 Conn. 201, 214, 496 A.2d 948 (1985); State v. Biller, 190 Conn. 594, 617, 462 A.2d 987 (1983). The court's 'decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. Going v. Pagani, 172 Conn. 29, 35, 372 A.2d 516 (1976).' State v. Biller, supra." (Brackets in original.) State v. Kemp, supra, 476, 507 A.2d 1387.

In this case, the trial court did not abuse its...

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