State v. Kemp

• Citation: 199 Conn. 473,507 A.2d 1387
• Decision Date: 22 April 1986
• Docket Number: 10778,Nos. 10727,s. 10727
• Parties: STATE of Connecticut v. Harold KEMP. STATE of Connecticut v. Robert KEMP.
• Court: Supreme Court of Connecticut

Page 1387

507 A.2d 1387

199 Conn. 473

STATE of Connecticut v. Harold KEMP.

STATE of Connecticut v. Robert KEMP.

Nos. 10727, 10778.

Supreme Court of Connecticut.

Argued Feb. 5, 1986.

Decided April 22, 1986.

Robin C. Murphy and Stephen F. Frazzini, New Haven, for appellants (defendant in each case).

Julia DiCocco Dewey, Asst. State's Atty., with whom were Elpedio Vitale, Deputy Asst. State's Atty., and, on the brief, Arnold Markle, State's Atty., John Durham, Asst. State's Atty., and Richard Palombo, Jr., Legal Intern, for appellee (State).

Before ARTHUR H. HEALEY, SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

SANTANIELLO, Justice.

The principal issue on these appeals is the propriety of the trial court's ruling excluding expert testimony on the potential for inaccuracy of eyewitness identification of participants in crimes. After a joint jury trial, the defendants, Harold Kemp and his brother Robert Kemp, were found guilty of four counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(2). Harold Kemp was given an effective sentence of five to ten years imprisonment and Robert a sentence of six to twelve years. They have separately appealed their convictions.

The jury could reasonably have found the following facts. On January 31, 1980, between 7:30 p.m. and 8 p.m., three black males entered Jimmy's Army and Navy Surplus Store in West Haven and robbed the owner and his employees at gunpoint. The first man to enter the store, later identified as the defendant Harold Kemp, was unarmed but took some leather jackets and money from the cash register. The second man, later identified as the defendant Robert Kemp, carried a shotgun and took personal property from three of the employees. A third male, David Tyson, ¹ was armed with a pistol and shot the store's owner while looking for money. The entire robbery lasted approximately five to ten minutes after which the three men fled. Nine days later the defendants were arrested in Newark, New Jersey, while riding in a car with Tyson. The gun used in the shooting was found on the front seat.

On February 14, 1980, store employees Napolean Gunn and Barry Cohen ² were able to identify the defendants from three photoboards shown them by police. Each board contained the same pictures arranged in different order. Gunn also identified the defendants in a pretrial line-up conducted in September, 1980. A store customer, Sandra Simpson, was able to identify Robert Kemp from a photographic display shown to her in October, 1980. All three witnesses also made identifications at trial.

The defendants claimed that this was a case of mistaken identity and presented an alibi defense. At trial, to support their argument that the state's witnesses were mistaken, they sought to call as an expert witness, Robert Buckhout, a psychologist and recognized authority on the factors which affect the accuracy of identifications. The defendants offered his testimony to impeach the reliability of the witnesses who identified them. Through Buckhout, they sought to explain to the jury that: "(1) stress, particularly stress during an incident involving violence by a weapon, may decrease the reliability of the identification; (2) memory is not a 'recording' device which accurately records an event and does not change over time; (3) the identification process is affected by post-event information learned by a witness; (4) and the level of certainty demonstrated by a person does not reflect a corresponding level of accuracy." After an evidentiary hearing was held outside the presence of the jury, the trial court refused the defendants' offer to introduce the expert testimony.

On appeal, the defendants do not directly attack the reliability of the identifications made, but claim that the trial court erred in excluding Buckhout's testimony. They argue that the court abused its discretion and violated their constitutional right to call witnesses on their own behalf. We find no error.

The 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. Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. State v. Girolamo, supra; State v. George, 194 Conn. 361, 373, 481 A.2d 1068 (1984), cert. denied, --- U.S. ----, 105 S.Ct. 963, 83 L.Ed.2d 968 (1985); Schomer v. Shilepsky, 169 Conn. 186, 191, 363 A.2d 128 (1975); Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); Taylor v. Monroe, 43 Conn. 36, 44 (1875); see generally McCormick, Evidence (3d. Ed. 1984) § 13.

Although we have never specifically addressed the issue of the admissibility of expert testimony on the reliability of eyewitness identifications, the issue has received increased attention in other courts in recent years. Almost uniformly, state and federal courts have upheld the trial court's exercise of discretion to exclude such testimony. See, e.g., United States v. Purham, 725 F.2d 450, 454 (8th Cir.1984); United States v. Watson, 587 F.2d 365, 368-69 (7th Cir.1978), cert. denied sub nom. Davis v. United States, 439 U.S. 1132, 99 S.Ct. 1055, 59 L.Ed.2d 95 (1979); United States v. Amaral, 488 F.2d 1148, 1152-53 (9th Cir.1973); People v. Lawson, 37 Colo.App. 442, 444-45, 551 P.2d 206 (1976); Taylor v. United States, 451 A.2d 859, 866-67 (D.C.App.1982); Hooper v. State, 476 So.2d 1253, 1257 (Fla.1985); People v. Clark, 124 Ill.App.3d 14, 21-22, 79 Ill.Dec. 427, 463 N.E.2d 981 (1984); Commonwealth v. Francis, 390 Mass. 89, 98-102, 453 N.E.2d 1204 (1983); cf. State v. Chapple, 135 Ariz. 281, 291-92, 660 P.2d 1208 (1983); People v. McDonald, 37 Cal.3d 351, 369-72, 208 Cal.Rptr. 236, 690 P.2d 709 (1984). Such testimony has been excluded on the grounds that the reliability of eyewitness identification is within the knowledge of jurors and expert testimony generally would not assist them in determining the question. See Commonwealth v. Francis, supra, 390 Mass. 96-97, 453 N.E.2d 1204. Such testimony is also disfavored because, as one court has stated, "it invades the province of the jury to determine what weight or effect it wishes to give to eyewitness testimony." State v. Poland, 144 Ariz. 388, 398, 698 P.2d 183 (1985).

The defendants claim that Buckhout should have been permitted to explain that a witness' expression of certainty does not make the identification more reliable, and that stress, the passage of time and intervening events diminish a witness' ability to make an accurate identification. Matters such as these, however, have generally been found to be within the realm of common experience and can be evaluated without expert assistance. United States v. Amaral, supra, 1153, People v. Clark, supra, 124 Ill.App.3d 21, 79 Ill.Dec. 427, 463 N.E.2d 981; Commonwealth v. Francis, supra, 390 Mass. 100-101, 453 N.E.2d 1204; People v. Brown, 124 Misc.2d 938, 940, 479 N.Y.S.2d 110 (1984). As the Supreme Judicial Court of Massachusetts has recently explained, "one may fairly contend that the jury would be aided by expert testimony. But [expert testimony on eyewitness identification], at least in this case and in most cases, deals with general principles, such as the fact that memories fade over time, that people under severe stress do not acquire information as well as alert persons not under stress, and that people tend unconsciously to resolve apparent inconsistencies between their memories and after-acquired facts. Obviously there are aspects of these general principles on which experts might make some contribution in particular cases. However, juries are not without a general understanding of these principles and, as the trial of this case demonstrates, they see the possible application of these principles in concrete circumstances. The jury [must] have the opportunity to assess the witnesses' credibility on the basis of what is presented at trial and not solely on general principles." Commonwealth v. Francis, supra, 390 Mass. 101, 453 N.E.2d 1204.

We are aware that in many cases the determination of guilt or innocence depends in large part on the credibility assigned to eyewitness identifications, and that in many instances identifications may be unreliable. See United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); see generally note, "Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification," 29 Stan.L.Rev. 969 (1977). This does not mean that a criminal defendant is without protection. Due process requires that such identifications be used only if they are reliable and are not the product of unnecessarily suggestive police procedures. See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985). The weaknesses of identifications can be explored on cross-examination and during counsel's final arguments to the jury. See United States v. Amaral, supra; People v. Lawson, supra, 37 Colo.App. 445, 551 P.2d 206; Commonwealth v. Francis, supra, 390 Mass. 100, 453 N.E.2d 1204. If the reliability of the identifications can be adequately questioned by such means and the jury is capable of understanding the reasons why they may be unreliable, the introduction of expert testimony would be "a superfluous attempt to put the gloss of expertise, like a bit of frosting, upon inferences which lay persons were equally...