State v. Kemp, Nos. 10727

CourtSupreme Court of Connecticut
Writing for the CourtSANTANIELLO
Citation199 Conn. 473,507 A.2d 1387
Docket Number10778,Nos. 10727
Decision Date22 April 1986
PartiesSTATE of Connecticut v. Harold KEMP. STATE of Connecticut v. Robert KEMP.

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 [199 Conn. 474] 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).

Page 1388

Before [199 Conn. 473] ARTHUR H. HEALEY, SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

[199 Conn. 474] 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.

[199 Conn. 475] 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[199 Conn. 476] 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.

Page 1389

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...

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117 practice notes
  • State v. Boscarino, Nos. 12667
    • United States
    • Supreme Court of Connecticut
    • August 11, 1987
    ...Conn. Const., amend. art. XVII. We disagree. Page 1270 The defendant's claim of error is governed by our recent opinion in State v. Kemp, 199 Conn. 473, 475-79, 507 A.2d 1387 (1986). In Kemp, we considered a virtually identical defense claim challenging the exclusion of the testimony of the......
  • State v. Pollitt, No. 12431
    • United States
    • Supreme Court of Connecticut
    • September 1, 1987
    ...essential element of the crime might result in a due process violation implicating the fairness of the defendant's trial. State v. Kemp, 199 Conn. 473, 480, 507 A.2d 1387 (1986); State v. Sinclair, 197 Conn. 574, 580-81, 500 A.2d 539 (1985); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1......
  • State v. IBAN C., No. 17389.
    • United States
    • Supreme Court of Connecticut
    • October 4, 2005
    ...has been abused, or the error is clear and involves a misconception of the law." (Internal quotation marks omitted.) State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). Generally, expert testimony is admissible if "(1) the witness has a special skill or knowledge directly applicable to......
  • State v. Williams, No. 19250.
    • United States
    • Supreme Court of Connecticut
    • July 28, 2015
    ...The trial court indicated that, prior to its ruling, it had reviewed, among other authority, this court's opinions in State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986), and State v. McClendon, 248 Conn. 572, 730 A.2d 1107 (1999).9 317 Conn. 700Further proceedings were held on the charge of......
  • Request a trial to view additional results
117 cases
  • State v. Boscarino, Nos. 12667
    • United States
    • Supreme Court of Connecticut
    • August 11, 1987
    ...Conn. Const., amend. art. XVII. We disagree. Page 1270 The defendant's claim of error is governed by our recent opinion in State v. Kemp, 199 Conn. 473, 475-79, 507 A.2d 1387 (1986). In Kemp, we considered a virtually identical defense claim challenging the exclusion of the testimony of the......
  • State v. Pollitt, No. 12431
    • United States
    • Supreme Court of Connecticut
    • September 1, 1987
    ...essential element of the crime might result in a due process violation implicating the fairness of the defendant's trial. State v. Kemp, 199 Conn. 473, 480, 507 A.2d 1387 (1986); State v. Sinclair, 197 Conn. 574, 580-81, 500 A.2d 539 (1985); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1......
  • State v. IBAN C., No. 17389.
    • United States
    • Supreme Court of Connecticut
    • October 4, 2005
    ...has been abused, or the error is clear and involves a misconception of the law." (Internal quotation marks omitted.) State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). Generally, expert testimony is admissible if "(1) the witness has a special skill or knowledge directly applicable to......
  • State v. Williams, No. 19250.
    • United States
    • Supreme Court of Connecticut
    • July 28, 2015
    ...The trial court indicated that, prior to its ruling, it had reviewed, among other authority, this court's opinions in State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986), and State v. McClendon, 248 Conn. 572, 730 A.2d 1107 (1999).9 317 Conn. 700Further proceedings were held on the charge of......
  • Request a trial to view additional results

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