State v. Miner

• Decision Date: 03 September 1985
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Rick A. MINER.

Page 382

497 A.2d 382

197 Conn. 298

STATE of Connecticut v. Rick A. MINER.

Supreme Court of Connecticut.

Argued June 5, 1985.

Decided Sept. 3, 1985.

Monte P. Radler, Special Public Defender, for appellant (defendant).

John F. Cocheo, Asst. State's Atty., with whom, on the brief, was C. Robert Satti, State's Atty., for appellee (state).

Before PETERS, C.J., and HEALEY, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

CALLAHAN, Associate Justice.

The defendant, Rick A. Miner, was convicted by a jury of first degree sexual assault, in violation of General Statutes § 53a-70, ¹ and of unlawful restraint in the first degree, in violation of General Statutes § 53a-95. ² He was sentenced to an effective term of eighteen years, suspended after fifteen years, and five years probation. The defendant appeals from the judgment of conviction claiming that (1) the state's failure to make a timely disclosure of allegedly exculpatory identification information deprived him of his constitutional rights to due process and a fair trial, and (2) his trial counsel's failure to seek sanctions or pursue further investigation upon the untimely disclosure of this information denied him the effective assistance of counsel. We find no error.

From the evidence adduced at trial, the jury could reasonably have found the following facts: On the evening of April 17, 1982, the complainant and her husband went to Danny's Cafe in Niantic, where they played pool with some friends and other customers, including the defendant. The complainant and her husband left the cafe at about 1:30 a.m. and went to the Lyme Tavern. About an hour later, after an argument with her husband, the complainant left the tavern to walk home alone. The tavern was approximately one mile from where she lived.

While walking along route 156, the complainant saw the defendant standing in a lighted parking lot. Minutes later, she saw him hitch a ride from a passing car. As the complainant approached the intersection of route 156 and Fairhaven Road, she again observed the defendant. He approached her on foot and, after a brief conversation in which the defendant expressed his desire for her and the complainant warned him to leave her alone, he pulled her into the bushes alongside the road. There was a struggle, during which the defendant overpowered the complainant, throwing her to the ground and sexually assaulting her.

The complainant eventually broke free and ran away, naked from the waist down. She ran up Fairhaven Road to a lighted house nearby. She told the occupants of the house that she had been raped and they took her in, gave her aid and called the police. Meanwhile, two of the men who were at the house, Robert Llewellen and James Suprenant, proceeded to the area where the complainant said the rape had occurred. In the illumination of a street light, Llewellen observed a man, clad only in his shirt and underwear, running from the spot the complainant had identified as the scene of the assault. Although Llewellen was able to see the man's face clearly, Suprenant was looking in a different direction and caught only a quick glimpse of the running man. Suprenant and Llewellen chased the man but were unable to catch him.

Both Llewellen and Suprenant testified at trial. Llewellen made a positive in-court identification of the defendant as a man he had seen earlier that evening at Danny's Cafe, and as the individual he had observed running from the scene of the crime. Suprenant, who had also been at Danny's Cafe earlier that night, could not identify the defendant at trial.

The complainant made an unequivocal in-court identification of the defendant at trial. Later during the course of the state's direct examination of the complainant, the state's attorney began to question her regarding a photographic identification session conducted by the police several days after the assault. Defense counsel objected and asked that the jury be excused.

In the jury's absence, the defendant's attorney conducted a voir dire examination of the complainant. The witness testified that she had been shown the photographs two days after the assault, which occurred on April 18, 1982, whereupon defense counsel stated: "I'm going to object to any inquiry as to any photographic display made after the 19th" on the ground "that counsel was appointed for the Defendant ... on April 19th ... and any photographic confrontation without the assistance of counsel would be in violation of his sixth amendment and fourth amendment rights." Before the court had an opportunity to rule on the defendant's objection, the state's attorney interjected that he had "an ethical and professional duty to vouch for his witnesses ... [and] on that basis ... I have an obligation to inquire regarding the prior photo lineup which is, in fact, flawed.... She made a misidentification, Your Honor." At that point, defense counsel withdrew his objection and the court declared a short recess.

After the recess, the jury returned to the courtroom and the state's attorney resumed his direct examination of the complainant regarding the photographic lineup. She testified that the police had visited her home and showed her a display of about ten photographs. After viewing the display, she informed the police that she "really could not identify the person in the pictures." Although she picked out "two that looked similar," she told the police that "I could not pick out one certain one because I was not sure if that was the man, and I didn't want to point somebody out that was not the man who did this." The complainant further testified that she did not narrow her identification down to one picture, and that neither of the two photographs she selected was of the defendant, whose picture was in fact among those displayed. She explained her inability to recognize the defendant's photograph by saying "it wasn't a very clear picture, and I would rather have seen him in person, and I just didn't want to pick somebody out if I wasn't really sure ... but I know for a fact that [the defendant] is the man now because I see him in person, and I can just remember his face that night very clearly." Shortly thereafter, the state concluded its direct examination of the complainant.

On cross-examination, the defendant's trial counsel questioned the complainant regarding the photographic identification session. He offered the photographic display as a full evidentiary exhibit, and it was admitted without objection and passed among the jurors at counsel's request. During this portion of his cross-examination, the defendant's attorney attempted to impeach the complainant's in-court identification of the defendant by questioning her on her inability to recognize his photograph. He challenged her characterization of the defendant's picture as "foggy or unclear," and tried to cast doubt on her descriptive abilities and powers of perception by comparing her prior description of the defendant with the two photographs she had selected as looking most like her assailant.

On May 10, 1982, the defendant had filed a pretrial motion for discovery and inspection in which he requested exculpatory information or materials including "[n]egative, inconsistent, ambiguous, or exhonorating [sic] results obtained in a showup, lineup, or photographic identification procedure." In its answer to the defendant's motion for discovery, the state indicated that it had no knowledge of any such exculpatory information or materials. While the defendant does not allege prosecutorial misconduct and conceded in oral argument that there is no reason to believe that the state intentionally withheld information regarding the complainant's faulty photographic identification, he argues that "the manner and timing of the prosecution's disclosure was clearly negligent and severely prejudiced [him] in the preparation and presentation of his defense." He claims on appeal that the prosecutor's disclosure during trial of the complainant's flawed photographic identification, after eliciting her unequivocal in-court identification of the defendant, denied him his right to a fair trial.

The defendant argues that the state's tardy disclosure of the allegedly exculpatory identification information was in violation of his constitutional rights as established in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and codified in General Statutes § 54-86c. ³ To obtain a new trial on the basis of a claim of tardy disclosure, "the defendant bears the burden of proving that he was prejudiced by the state's failure to make the information available to him at an earlier time." State v. Reddick, 197 Conn. 115, 122, 496 A.2d 466 (1985). The defendant asserts that the timing of the disclosure was harmful in two respects. First, he maintains that the late discovery "foreclosed [him] from pretrial investigation and/or exploration of the evidence underlying [the complainant's] in-court identification and out-of-court misidentification." Such investigation, the defendant suggests, might have furnished a basis for the suppression of the complainant's in-court identification. The second source of prejudice claimed by the defendant is that "the timing of the disclosure denied [him] an opportunity to develop, through additional discovery or otherwise, a defense based upon mistaken identity." Prior knowledge of the complainant's misidentification, he argues, would have enabled trial counsel to investigate the two men whose photographs were selected during the identification session, and would possibly have led to information implicating someone other than the defendant as the assailant.

We are unable to address on its merits the defendant's claim of prejudicial tardy disclosure of exculpatory material because it has not been properly preserved for appellate review both because of the defendant's withdrawal...