State v. Pollitt

• Decision Date: 22 April 1986
• Citation: 199 Conn. 399,508 A.2d 1
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. David M. POLLITT.

Page 1

508 A.2d 1

199 Conn. 399

STATE of Connecticut v. David M. POLLITT.

Supreme Court of Connecticut.

Argued Jan. 8, 1986.

Decided April 22, 1986.

William F. Dow III, New Haven, for appellant (defendant).

Guy W. Wolf III, Asst. State's Atty., with whom, on brief, was Arnold Markle, State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and CALLAHAN, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant, David M. Pollitt, was found guilty after a jury trial of the crime of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A) ¹ and of the crime of sexual assault in the first degree in violation of General Statutes § 53a-70(a). ² This appeal followed.

The principal issue on appeal is whether the trial court erred in denying the defendant's motions for a mistrial or a continuance where allegedly exculpatory material, which could show another person committed the crimes charged and which had been specifically requested and wrongfully withheld by the state, was discovered midtrial and the exculpatory witness could not be located on short notice. At trial the principal issue was the identity of the perpetrator of the crime. The defendant also claims that the trial court erred: (1) in failing to instruct the jury accurately on the dangers of eyewitness identification; (2) in its manner of "marshalling" the evidence presented in its instructions; (3) in its admission of the evidence of his blood type; and (4) in denying his pretrial motions to suppress the victim's identification. Because of our action on the principal issue, we need not discuss the remaining issues at this time. We remand for further proceedings in accordance with this opinion.

Because of our determination to remand, a full recitation of the evidence before the jury is not necessary. The length of the trial and the number of witnesses who testified, ³ however, does not permit us to capsulize those circumstances adduced at trial that demonstrate the background for our remand.

The following is some of the evidence that was adduced before the jury. On October 17, 1981, M, a twenty-five year old woman, left her Wallingford apartment at about 4:45 p.m. for a bicycle ride. She cycled past the defendant on Grieb Road near Durham Road and he yelled at her asking for directions. M stopped her bicycle, went back to him and asked him what he was looking for. He said: "I'm going to rape you, lady." With his right hand and arm he grabbed her from "around [her] back" and grabbed her bicycle with his left hand. He dragged her and the bicycle off the road into the field where he discarded the bicycle. He then sexually assaulted her.

After the assault, she ran to the house across the street for help. Gail DeNegris opened the door, whereupon M told her that she had just been sexually assaulted. DeNegris observed M's disheveled clothing and a cut on the side of her nose and detected the odor of a man's cologne. After a time, DeNegris called the Wallingford police at 5:39 p.m. Officer Thomas Francolino, who was dispatched by radio, was the first police officer to arrive at the DeNegris home. When he received the radio call to go there, he was approximately one and one-half to two miles away and it took him four minutes to get there. He arrived at approximately 5:43 p.m. He found the victim to be extremely distraught. Police officers located M's bicycle in the field where it had been discarded. Fingerprints taken from the crossbar of the bicycle were later identified as those of the defendant. ⁴

The police made inquiries in the area of the crime shortly after its commission. Beverly Steinberg, a state's witness who was an area resident, said that she saw a dark green AMC Pacer automobile "sitting" on Grieb Road just before its intersection with Durham Road at "around 5:00 o'clock" on October 17, 1981. ⁵ Roland Sperzel, a state's witness who drove a truck transporting fill for construction on October 17, 1981, made "fifteen, twenty trips" that day "going up Grieb Road or Durham Road and going around the corner past Grieb." That day he saw "[a] Pacer, green '76 to '78" parked headed west on Durham Road where "usually they don't park" sometime between 1 and 6 p.m. At one point he saw a "guy walking away from the car with a red flannel shirt on ... a plaid shirt." Asked to describe him, Sperzel said: "Five-five--six foot. But I was looking down at him so I really don't know how tall he was. He was medium build" and his hair was brown. The teletype put out by Detective Sergeant William Butka described the assailant as, inter alia, a white male, "five-eight to five-nine with husky build" and with short brown hair parted in the middle. George Mellor and Joseph Stankwitz were witnesses produced by the defendant. Mellor's home is on the corner of Grieb Road and Durham Road and he can see the I-91 overpass from his home. He was outside his home on the afternoon of October 17, 1981, probably from 4 p.m. to "5:30, maybe 6:00 p.m." While his activities about the outside of his home did not permit him to view the overpass for all of that time, he never saw a parked motor vehicle on the overpass. Stankwitz, whose home is diagonally opposite from Mellor's, had left his home on October 17, 1981, about 3:30 p.m. and had driven over the I-91 Durham overpass but did not see a vehicle parked there. Daryl Perkins, a defense witness, who lived on Old Durham Road across from the area known as "Three Fields," testified that on October 17, 1981, he saw a white car parked in Three Fields about "[p]robably 5:00 o'clockish in the afternoon" or "[f]ive or six at the latest." He did not see anybody around the car and acknowledged that it was not uncommon to see cars parked at that place. He saw hunters "go over there" and that date was during "hunting season time." Mrs. Agostini, another defense witness, testified that on October 17, 1981, she was driving to her home on Durham Road about 5 or 5:30 p.m. from her usual hairdressing appointment. As she proceeded easterly on Grieb Road and before she came to the I-91 Durham overpass, she noticed a "kind of battered" lime green car that "wasn't new" parked about five feet off the road near a large cornfield. She also said that she saw no one near the car--that hunters go into that particular cornfield and that it was the hunting season at that time. She saw no cars parked on Durham Road as she proceeded to her home.

Detective Patricia Miranda was with M on October 18, 1981, when efforts were undertaken to make a composite of M's assailant. Miranda testified that M "did not like the composite" and M herself said that she "did not like the composite when it was completed," and was "[n]ot at all" satisfied with it. She also looked at numerous mug shots ("at least two hundred, perhaps more") but did not make an identification. The defendant's photo was not among those shown to M at this time. On April 22, 1982, six months after the assault, M was shown an array of eight photos of bearded males at her home by Detective Theodore Milewski of the Wallingford police department. ⁶ Although she did not say that she was certain, she did indicate to Milewski that photo No. 417 "resembled" her assailant but that she could not positively identify him from a photograph, that "[she] would have to see the person." Photo No. 417 was a photo of the defendant. A number of days after her meeting with Milewski, M met with Miranda who showed her photo No. 417 again. On August 5, 1982, M went to the Wallingford police department and viewed a videotape of six bearded males. She immediately identified the fifth participant, the defendant, as her assailant.

Against this background, we turn to the sworn written statement of David Isola given to the Wallingford police on October 20, 1981. Among other things, his statement says that at about 5:30 p.m. on October 17, 1981, he heard on his police scanner radio that police cars were dispatched to Grieb Road on a signal that he ascertained was a rape. He "heard" on the scanner that they found a bike and were "checking out a white car somewhere." Isola then went to George Hodge's house, which was on Durham Road near Grieb Road, and he and Hodge decided to "go out and look for the guy." He had his scanner with him and he heard the police broadcast a description of the "guy" and at the time all he knew was that it was a male about his height. This was about 6 p.m. He drove around for a while with Hodge and then they came upon Isola's younger brother Randy, Greg Hodge and Jimmy Briars as they were walking along Old Durham Road. David Isola told Randy that they were "looking for a guy that raped some chick" whereupon Randy told him that there was a car in "Three Fields" with a guy in it. After describing the borders of "Three Fields," his statement states that he drove up there and saw a car parked way up in the back of the third field. He said it was "a white-yellowish car with red primer paint on the rear driver's side quarter panel." He believed it was a Toyota Celica 4-door car and while it was a "newer car," it was "all beat up" and it was "like a squarish type car." Isola approached the car in which a white male was sitting while George Hodge remained in Isola's car. He said that the white male was of "medium build, 160-175, about 5'8" tall. He had brown hair, which was parted in the middle and feathered back. It was like a disco haircut, brushed back away from his ears, so his ears were exposed. He had a mustache cut away from his nose. The mustache wasn't that thick. It was dark. The mustache was short, not going past the end of his lips. This guy looked like he never shaved his sideburns, they seemed long, not thick. I think this guy had dark eyes. He seemed Italian or Hungarian in looks. He was about 21-22 years old. This guy was wearing a flannel plaid jacket, or thick shirt on, it was brown or maroon for the basic color." Isola was...