State v. Finan

• Decision Date: 30 March 2004
• Docket Number: (AC 21737).
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. MICHAEL FINAN.

82 Conn. App. 222

843 A.2d 630

STATE OF CONNECTICUT v. MICHAEL FINAN.

(AC 21737).

Appellate Court of Connecticut.

Argued November 21, 2003.

Officially released March 30, 2004.

Dranginis, Flynn and Bishop, Js.

Pamela S. Nagy, special public defender, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Warren Maxwell, former senior assistant state's attorney, for the appellee (state).

Opinion

BISHOP, J.

The principal issue in this appeal is whether police officers may give lay opinion testimony as to the identification of an individual depicted on a convenience store surveillance videotape filmed during the course of a robbery. Because we believe that they may, the trial court's judgment of conviction is affirmed.

The defendant, Michael Finan, was convicted after a jury trial of one count of robbery in the second degree in violation of General Statutes § 53a-135 and one count of conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-135 and 53a-48 (a). On appeal, he claims that the court abused its discretion when it allowed four police officers to testify that they suspected that he was one of the individuals who was depicted on the store's surveillance videotape. The defendant claims, additionally, that he was denied a fair trial due to jury misconduct.

The jury reasonably could have found the following facts relevant to our discussion of the issues on appeal. At approximately 2:50 a.m. on December 23, 1999, the defendant and an unidentified man entered a 7-Eleven convenience store in South Windsor, one behind the other, while clerk Ken Thibeault was working and while the store's surveillance video camera was operating and aimed in the direction of the checkout area. The defendant was wearing a green hooded sweatshirt, and the unidentified man wore a mask and carried a rifle or shotgun. The videotape showed the unarmed man walking past the checkout area out of the camera's range after which the armed man could be seen stopped at the checkout counter and pointing his weapon at the clerk. Shortly thereafter, the unidentified armed man could be seen walking from the checkout area out of the store, and the defendant also could be seen simultaneously exiting the store. During the subsequent investigation, four South Windsor police officers viewed the videotape of the two men entering and departing from the store, and of the events of the robbery itself involving the unidentified man. At trial, each of the officers testified about having a suspicion based on a long-term familiarity with the defendant's profile and mannerisms that the unarmed man depicted entering and departing from the store simultaneously with the armed man was the defendant. That evidence was heard by the jury over the defendant's objection that the officers' testimony should be precluded on the ground that it invaded the province of the jury to determine the ultimate issue in the case.

On October 30, 2000, the jury found the defendant guilty of robbery in the second degree and conspiracy to commit robbery in the second degree. On December 12, 2000, the court found the defendant in violation of his probation and on February 13, 2001, sentenced him to a total effective term of sixteen years incarceration, suspended after seven years, and five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The first issue on appeal is whether the court abused its discretion in allowing four police officers to testify that they "suspected" that it was the defendant on the surveillance videotape. Although we conclude that the court's determination to permit the officers to give identification testimony in the guise of a suspicion, in reliance on State v. Fuller, 56 Conn. App. 592, 621, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000), was misplaced, we nonetheless affirm the decision on the alternate ground that the officers' testimony was appropriate lay opinion as to identification, a material but not ultimate issue.¹

The following additional facts are germane to our resolution of that issue. Prior to the start of the trial, the defendant filed a motion to preclude testimony by four police officers as to their opinion that he was depicted on the videotape. The defendant argued that the officers' testimony that he was the unmasked individual on the videotape was an opinion on an ultimate issue, which is prohibited by State v. Heinz, 193 Conn. 612, 627, 480 A.2d 452 (1984), and § 7-3 of the Connecticut Code of Evidence. In response, the state proffered that the officers would not testify as to their opinion, but rather as to their suspicion that the defendant was depicted on the videotape. The state argued that the testimony was admissible under this court's holding in State v. Fuller, supra, 56 Conn. App. 592. Although the court granted the motion in limine, the court stated that the officers would be permitted to testify in that regard as long as their testimony was limited to their suspicions that the defendant was depicted on the videotape.

Subsequently, the four officers testified at trial that after viewing the surveillance videotape, they suspected that the unmasked man on the videotape was the defendant. Detective Michael Thompson testified that he had known the defendant for ten years, had watched him grow up and knew his family. He stated that his suspicions were based on the defendant's mannerisms and shy walk. Detective Michael Russotto testified that he knew the defendant and his family for eight to ten years and suspected that the defendant was the unmasked man on the videotape. He claimed that he recognized the defendant from his profile. Officer Kristina Ferrante testified that she had known the defendant for eight years and suspected that he was the man on the videotape on the basis of his mannerisms, specifically his profile and walk. Finally, Officer Daniel Martin testified that upon reviewing the videotape, he immediately suspected that the defendant was the unmasked man on the basis of his sixteen years of contact with the defendant and, in particular, the defendant's distinct walk. In addition to the police officers' identification testimony, the state offered testimony from Robert Teachman, who stated that the defendant had told him that he had participated in the robbery. With those additional facts as context, we turn to the defendant's first claim.

A

The defendant first argues that the testimony of the officers was an opinion on an ultimate issue. That claim has two parts: First, that the testimony of the officers was, in fact, opinion testimony, and, second, that it was testimony on an ultimate issue.

Our standard of review is well settled. "The admissibility of opinion testimony from lay witnesses rests in the sound discretion of the trial court, and the exercise of that discretion, unless abused, will not constitute reversible error." (Internal quotation marks omitted.) Mezes v. Mead, 48 Conn. App. 323, 330, 709 A.2d 597 (1998).

At the outset, we agree with the defendant that the officers' testimony, though varnished as mere suspicion, was, in fact, opinion evidence. In reaching that determination, we decline to expand the holding in State v. Fuller, supra, 56 Conn. App. 592, to permit lay identification opinion testimony when couched as a mere suspicion if that same testimony framed as an opinion would otherwise be inadmissible. In Fuller, we found no error in the trial court's ruling permitting the defendant's father to testify that he suspected that his daughter had committed the charged criminal act. As we noted in Fuller, however, the evidence was admitted as part of the state's redirect examination of the defendant's father and as part of an effort to rehabilitate him after vigorous cross-examination by the defendant bearing on her father's state of mind during the evening of the assault. Id., 619. Those limitations, which were an integral part of our holding in Fuller, are not present in this instance. Here, unlike in Fuller, the testimony of the officers, while characterized as suspicion, can be understood fairly only as statements of the opinion that it was the defendant who was depicted on the surveillance videotape.

Our conclusion that the officers' testimony was, in fact, opinion evidence brings us to the consideration of whether that testimony was admissible as a lay opinion. At the outset, we note that in Connecticut, under prescribed circumstances, a lay witness may be competent to offer an opinion. Connecticut Code of Evidence § 7-1 provides: "If a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue." Thus, to be admissible, lay opinion testimony must meet two criteria: It must rationally be based on perception, and it must be helpful. In this instance, our review of the record finds support for both parts of the test. Each of the officers had significant contacts with the defendant for periods ranging from eight to sixteen years and in various circumstances. On the basis of their knowledge of the defendant, the officers were able to offer testimony concerning his mannerisms, gait, and profile and identifying similarities on the videotape. Thus, the officers' familiarity with the defendant provided them a rational basis for their testimony that it was the defendant who appeared as the unarmed person on the surveillance videotape.

As to the second criteria for admissibility, regarding helpfulness, the defendant argues that the jurors were just as able as the officers to determine whether the videotape depicted the defendant. Sp...