State v. Guilbert

• Citation: 306 Conn. 218,49 A.3d 705
• Decision Date: 04 September 2012
• Docket Number: No. 17948.,17948.
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Brady GUILBERT.

306 Conn. 218
49 A.3d 705

STATE of Connecticut
v.
Brady GUILBERT.

No. 17948.

Supreme Court of Connecticut.

Argued Feb. 10, 2011.
Decided Sept. 4, 2012.

[49 A.3d 711]

Lisa J. Steele, special public defender, for the appellant (defendant).

John P. Gravalec–Pannone and Paul J. Narducci, senior assistant state's attorneys, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (state).

Charles D. Ray, Hartford, and Matthew A. Weiner filed a brief for the Connecticut Innocence Project as amicus curiae.

James E. Coleman, Jr., pro hac vice, Theresa A. Newman, pro hac vice, and Jeremiah Donovan filed a brief for Neil Vidmar et al. as amici curiae.

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.^*

[49 A.3d 712]

PALMER, J.

[306 Conn. 220]A jury found the defendant, Brady Guilbert, guilty of capital felony in violation of General Statutes § 53a–54b (7),¹ two counts of murder in violation of General Statutes § 53a–54a,² and assault in the first degree in violation of General Statutes § 53a–59 (a)(1). ³ The trial court rendered judgments in accordance with the jury verdicts and sentenced the defendant to a term of life imprisonment without the possibility of release, plus twenty years. On appeal, the defendant raises two claims. First, the defendant contends that the trial court improperly precluded him from presenting expert testimony on the fallibility of eyewitness identification testimony. The defendant maintains that this court should overrule State v. Kemp, 199 Conn. 473, 477, 507 A.2d 1387 (1986), and [306 Conn. 221]State v. McClendon, 248 Conn. 572, 586, 730 A.2d 1107 (1999), in which we concluded that the average juror knows about the factors affecting the reliability of eyewitness identification and that expert testimony on the issue is disfavored because it invades the province of the jury to determine what weight to give the evidence. We agree that the time has come to overrule Kemp and McClendon and, further, that testimony by a qualified expert on the fallibility of eyewitness identification is admissible under State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998), when that testimony would aid the jury in evaluating the state's identification evidence. Although we also agree that the trial court improperly precluded the defense from presenting certain expert testimony on the issue of eyewitness identification, we further conclude that the impropriety was harmless. We also reject the defendant's claim that the trial court improperly denied his motions for a mistrial and for a new trial, which stemmed from the state's delayed disclosure of certain allegedly exculpatory evidence. Accordingly, we affirm the judgments of the trial court.

The jury reasonably could have found the following facts. At approximately 11:30 p.m. on October 8, 2004, Cedric Williams and Terry Ross arrived at a bar in New London known as Ernie's Cafe' (bar). Before arriving at the bar, Ross had parked his Volvo station wagon in a nearby municipal parking lot. At approximately 11:45 p.m., William Robinson arrived at the bar. About one hour later, as Robinson walked to the restroom, he was shot in the face and suffered a life-threatening wound. Police and emergency medical personnel transported Robinson first to The William W. Backus Hospital in Norwich and then to Rhode Island Hospital in Providence, Rhode Island. Before transporting him to the hospital, the police asked Robinson who had shot him. [306 Conn. 222]Robinson either did not respond to the question or stated that he did not know the identity of the shooter.

At approximately 12:40 a.m. on October 9, 2004, Officer Jose Olivero of the New

[49 A.3d 713]

London police department received a radio transmission about a disturbance at the bar. As he responded to the call, he saw the defendant running away from the bar, clutching something in both hands. At trial, Olivero testified that the defendant had been wearing light blue sweatpants, a white tee shirt, and a black or dark blue bomber jacket.

At approximately 12:51 a.m., the New London police department received a 911 call about a shooting at the intersection of Hope and Hempstead Streets in New London. Police officers responding to the call found Ross' Volvo station wagon crashed into a tree. Ross and Williams were inside the vehicle, and both had been shot in the head. Williams was pronounced dead at the scene and Ross was taken to Lawrence+Memorial Hospital in New London, where he was pronounced dead. An examiner with the state forensic science laboratory ultimately determined that Ross and Williams had been shot with the gun that had been used to shoot Robinson.

Later that day, the defendant's friend, Gary Holland, drove the defendant to Bronx County, New York. Holland returned to Connecticut at about 5 p.m. and learned from watching television that three people had been shot in New London and that the police were looking for the defendant. Holland called the defendant and informed him of what he had learned. The defendant neither admitted nor denied involvement in the shootings.

On the evening of October 9, 2004, Detective Keith Crandall and Officer George Potts of the New London police department visited Robinson at Rhode Island Hospital. When Potts asked Robinson who had shot [306 Conn. 223]him, Robinson responded, “you know who shot me.” Potts said that he did not know, and Robinson said, “Fats did it.” Potts and Crandall then showed Robinson several photographic arrays, and Robinson identified the defendant as the person who had shot him. Robinson gave a statement to Crandall indicating that he had known the defendant “for a while” and had “had words” with him “a couple of months” earlier. Robinson said that, when he saw the defendant in the bar, he had “a bad feeling and knew something was going to happen.” Crandall prepared a written statement, and Robinson signed it. At trial, Robinson denied knowing who had shot him, denied having signed the statement, and denied that the reason why he had picked the defendant's photograph from the array was that the defendant had shot him.

Nine days after the shooting, Lashon Baldwin saw the defendant's photograph in a newspaper and gave a statement to the New London police about the incident at the intersection of Hope and Hempstead Streets. At trial, Baldwin testified to the following. At the time of the shooting, Baldwin and her cousin, Jackie Gomez, were seated in a car parked on Hempstead Street. Baldwin saw a car traveling down Hempstead Street and, as the car reached Hope Street, she heard three “loud pops.” The car then came to a stop after hitting another parked car, and the defendant exited through the back door on the driver's side. The defendant was wearing “a black flight [jacket]” and “a black skully hat.” Baldwin recognized the defendant and knew him as “Fats” because she had seen him as a “regular customer” in a donut shop where she had worked for more than one and one-half years. Baldwin and Gomez left the area immediately. Shortly thereafter, Baldwin received telephone calls from family members indicating that Williams, who was Baldwin's cousin, had been in the car on Hempstead Street. Baldwin returned to the area and [306 Conn. 224]saw Williams' body in the car. Police were

[49 A.3d 714]

present, but Baldwin did not talk to them because she was “upset” and “scared.”

Gomez gave a statement to the police nine days after the shooting. At trial, he testified to the following. At approximately 1 a.m. on October 9, 2004, Gomez was with Baldwin in the car on Hempstead Street when he heard three gunshots. He looked to see what was happening and saw a car drive up Hope Street and hit another car. A person wearing a “black hoodie” and “blue jeans” exited from the car and wiped the door handle with his sleeve. The person came toward the car that Gomez and Baldwin were in, and Gomez recognized him as the defendant. Gomez knew the defendant because they previously had lived together for “quite some time....” Gomez then left the area but returned upon learning that his cousin, Williams, had been shot. Although police were present, Gomez did not speak to them because he was “in shock.”

Ten days after the shootings, Scott Lang, who had been at the bar when Robinson was shot, saw the defendant's photograph in a newspaper and recognized him as the person who had shot Robinson. Lang then went to the police and gave a statement. At trial, he testified to the following. On the night of the shooting, Lang was waiting in line to use the restroom at the bar when he was shoved against a door and a shot was fired. Lang was “shoulder to shoulder” with the shooter and observed that he was wearing “a black quilted jacket, possibly North Face.” At trial, Lang identified the defendant as the shooter.

On October 14, 2004, police apprehended the defendant in New York. Thereafter, the defendant was tried before a jury and convicted of two counts of murder in connection with the shooting deaths of Williams and Ross, capital felony arising out of that double killing, [306 Conn. 225]and assault in the first degree for the shooting of Robinson.⁴

[49 A.3d 715]

I

We first address the defendant's claim that the trial court improperly granted the state's motion to preclude [306 Conn. 226]expert testimony on the reliability of eyewitness identifications in reliance on our decisions in Kemp and McClendon. We agree that Kemp and McClendon should be overruled and that expert testimony on eyewitness identification is admissible upon a determination by the trial court that the expert is qualified and the proffered testimony is relevant and will aid the jury. We also conclude, however, that the trial court's exclusion of the proffered expert testimony in the present case did not substantially affect the verdicts.

The following undisputed facts and procedural history are relevant to our...