State v. Outlaw
| Decision Date | 20 November 1990 |
| Docket Number | No. 13753,13753 |
| Citation | 582 A.2d 751,216 Conn. 492 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. William OUTLAW, Jr. |
Ira B. Grudberg, with whom were Steven D. Ecker, New Haven, and David T. Grudberg, New York City, for appellant (defendant).
Susan C. Marks, Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellee (state).
Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and BORDEN, JJ.
The state charged the defendant, William Outlaw, Jr., with the crime of murder in the first degree in violation of General Statutes § 53a-54a(a), 1 assault in the first degree in violation of General Statutes §§ 53a-59(a)(1) and 53a-8, 2 and attempted murder in violation of General Statutes §§ 53a-54a(a) and 53a-49(a). 3 A jury found the defendant guilty as charged. Thereafter, the trial court acquitted the defendant of assault in the first degree, but convicted him of murder and attempted murder. He was sentenced to a total effective term of sixty years imprisonment, and this appeal followed.
On appeal, the defendant claims that the trial court should not have admitted into evidence: (1) the testimony of two police officers describing the extrajudicial identification of the defendant from a photographic array by the victim of the attempted murder, Fitzroy Phillip; and (2) the transcript of the probable cause hearing at which Phillip identified the defendant in the courtroom. We conclude that the trial court should have excluded the police officers' extrajudicial identification testimony, and we therefore reverse the judgment and remand the case for a new trial.
The jury could reasonably have found the following facts. At approximately 1:15 a.m. on September 24, 1988, New Haven police officers were dispatched to investigate several gun shots fired in the Church Street South Project area in New Haven, an area known for its high volume narcotics activity. Upon their arrival, the officers discovered Sterling Williams lying in a pool of blood and suffering from fatal gunshot wounds. Two guns and approximately one thousand dollars in cash were later found on Williams' person.
On the same morning, at approximately 1:20 a.m., a woman residing at Salem Street, New Haven, awoke to the sound of Fitzroy Phillip pounding on her back door. The woman's mother called the police, and then allowed Phillip, who was bleeding profusely, to enter her home. Phillip was taken to the hospital and treated for multiple gunshot wounds to the back, and two gunshot wounds to the leg. At the hospital, in the presence of police officers Gilbert Burton and Joseph Pettola, Phillip identified the defendant from a photographic array.
On October 18, 1988, the trial court conducted a hearing in probable cause at which Phillip identified the defendant in the courtroom as the person who had shot both him and Williams. Phillip also testified to the following facts. He had ridden in a truck with Williams to the Church Street area at approximately 1 a.m. on September 24, 1988, and Williams had gotten out of the truck to speak with the defendant, who was standing among a group of six or seven black males near an abandoned car. Five minutes later, Phillip had approached the group, and had stood within a few inches of the defendant and Williams. A few minutes later, Phillip had seen the defendant pull out a gun and shoot Williams in the head. The defendant had then shot Phillip in the leg, and as Phillip fled, the defendant had shot him once more in the leg and three times in the back.
Sometime after the probable cause hearing, the state learned that Phillip had left Connecticut, possibly for the Brooklyn, New York area. An attempt by the New York police to locate Phillip proved fruitless. Nonetheless, at trial, the state offered the testimony of Burton and Pettola describing Phillip's identification of the defendant from the photographic array. The defendant moved to suppress the testimony as hearsay and, in the alternative, on the ground that the unnecessarily suggestive nature of the photographic array had violated his constitutional right to due process. The trial court denied the defendant's motion, ruling that the photographic array was not unnecessarily suggestive and that the police officers' testimony, although hearsay, was admissible under the exception to the hearsay rule for extrajudicial statements of identification, as well as the "residual" exception to the rule.
The state also sought at trial to introduce the transcript of the probable cause hearing. The defendant promptly moved to suppress the transcript, arguing that: (1) Phillip's identification of the defendant at the probable cause hearing was tainted by the earlier due process violations inherent in the photographic identification procedure; and (2) his inability to cross-examine Phillip at trial regarding the photographic procedure and the extent of the alleged taint violated his constitutional rights to confrontation. The trial court denied the defendant's motion, and permitted the transcript to be read to the jury. These two evidentiary rulings form the basis of the defendant's claims on appeal.
The defendant's first claim stems from Phillip's extrajudicial identification of him from a photographic array. The identification occurred at the hospital, approximately twenty-four hours after Phillip was shot. After approaching Phillip in his hospital bed, Burton and Pettola asked Phillip to examine a ring-bound tray into which they had inserted a photograph of the defendant among 249 other photographs of black males. They placed the tray on Phillip's chest, and flipped the pages for him. Both officers testified at trial that Phillip was alert and conscious, and that he carefully examined the photographs without comment until, upon observing the defendant's photograph, he pointed and unhesitatingly stated: "This is the guy." Pettola testified that Phillip was 100 percent certain of his identification.
The defendant maintains that the officers' testimony describing this identification was inadmissible hearsay. We agree that the testimony should have been excluded as hearsay, not falling within any exception to the rule, and accordingly we conclude that a new trial is necessary. 4 We shall consider the trial court's alternate grounds for admitting the officers' testimony in sequence.
The trial court's first ground for admitting the officers' testimony was that it fell within our exception to the hearsay rule for extrajudicial statements of identification. When arguing at trial for admission of the testimony, the state relied in large part upon State v. Townsend, 206 Conn. 621, 539 A.2d 114 (1988), wherein we reaffirmed in a different context our holding in State v. McClendon, 199 Conn. 5, 505 A.2d 685 (1986), that an exception to the hearsay rule for prior identification testimony was warranted where "the identifications were reliable and the witnesses were available for cross-examination." Id., at 11, 505 A.2d 685. The trial court's ruling admitting the testimony was premised in part on the proposition that Phillip's availability for cross-examination at the probable cause hearing sufficed as a substitute for exposure to cross-examination before the jury. We disagree.
A consideration integral to our holding in McClendon was that the declarants testified at trial to the facts and circumstances surrounding their extrajudicial identifications, and thus defense counsel had the opportunity at trial to cross-examine them, procedurally restricted only by the court's exercise of discretion. Id., at 9, 505 A.2d 685. 5 Similarly, in Townsend, although the declarant did not testify to the facts and circumstances of his extrajudicial identification on direct examination, he was available for cross-examination at trial when hearsay evidence of that identification was offered by the state. State v. Townsend, supra, 206 Conn. at 623-24, 539 A.2d 114; see also State v. Weidenhof, 205 Conn. 262, 533 A.2d 545 (1987).
In this case, Phillip did not testify at trial to the facts and circumstances surrounding his extrajudicial identification. We therefore conclude that he was not "available for cross-examination" within the meaning of that phrase in McClendon. Nor do we believe that Phillip's availability for cross-examination at the probable cause hearing renders the officers' testimony admissible under Townsend. A fundamental, and we think dispositive, difference between the facts of Townsend and those in the case at bar is that the state did not offer the officers' testimony at the probable cause hearing, at which Phillip testified so that he could have been cross-examined about his previous identification of the defendant from the photographic array.
We therefore hold that the trial court should not have admitted the officers' testimony under the exception to the hearsay rule for extrajudicial statements of identification. We turn now to the trial court's alternate ground for admitting the testimony.
The trial court stated as its alternate ground for admitting the officers' testimony: The state urges us to uphold this ruling under the authority of State v. Sharpe, 195 Conn. 651, 491 A.2d 345 (1985). In Sharpe, we held that hearsay inadmissible under one of the traditional exceptions to the hearsay rule may be admitted if (1) there is a "reasonable necessity for the admission of the statement," and (2) the statement is "supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions." Id., at 664, 491 A.2d 345.
The circumstances present in this case disclose that Phillip's statement was not imbued with...
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