State v. Pollitt, 12431

• Citation: 205 Conn. 132,531 A.2d 125
• Decision Date: 01 September 1987
• Docket Number: No. 12431,12431
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. David M. POLLITT.

Page 125

531 A.2d 125

205 Conn. 132

STATE of Connecticut v. David M. POLLITT.

No. 12431.

Supreme Court of Connecticut.

Argued June 10, 1987.

Decided Sept. 1, 1987.

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, CALLAHAN and GLASS, JJ.

ARTHUR H. HEALEY, Associate Justice.

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

Upon hearing the appeal, in which the defendant raised several claims of error, we remanded the case to the trial court for the purpose of augmenting the record so that we could conduct a "meaningful appellate review" of the defendant's claim of error premised on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). State v. Pollitt, 199 Conn. 399, 415, 508 A.2d 1 (1986). ³ In remanding for an evidentiary hearing, we indicated that the trial court must resolve "whether the state suppressed ... Brady material that was favorable and material to the defendant." Id., at 416, 508 A.2d 1. The alleged Brady material involved was the sworn statement of David Isola given to the Wallingford police on October 20, 1981, four days after the crimes with which the defendant was charged had been committed. ⁴

On remand, we directed the trial court to "make in writing those findings of fact and conclusions of law upon which it bases [its] determination, whatever it may be." Id. We further stated that "[i]n the event that [the court] resolves [the Brady ] issue against the defendant, this court will then, in its supervisory capacity, upon the filing of those findings and conclusions, proceed to dispose of this appeal." Id.

The trial court ⁵ conducted an evidentiary hearing on remand and has filed its memorandum which includes its findings of fact and conclusions of law. The trial court decided the Brady claim against the defendant. Thereafter, a supplemental record was prepared and the parties filed supplemental briefs and this court held a full hearing, at which the parties argued their claims concerning the remand as well as the other claims of error raised by the defendant in the original appeal.

In addition to the Brady claim, the defendant also claims that the trial court erred in: (1) instructing the jury on sexual assault in the first degree; (2) failing to instruct the jury accurately on the dangers of eyewitness identification and in its manner of "marshaling" the evidence presented during its instructions to the jury; (3) its admission of the evidence of his blood type; and (4) denying his pretrial motions to suppress the victim's identification.

I

It will be helpful to turn first to the Brady claim. The principal issue at the trial was the identity of the perpetrator of the crimes charged. ⁶ In State v. Pollitt, supra, we chronicled at some length certain evidence that was before the jury, certain applicable legal principles and the arguments of the state and the defendant directed to the issues raised by the defendant's Brady claim. We will not repeat them fully here, except where necessary to our discussion of the defendant's claims. The defendant argues not only that the state suppressed Brady material that was favorable and material to him, but also that the trial court erred in denying his motions for a mistrial or a continuance when he discovered midtrial allegedly exculpatory material showing that another person had committed the crimes charged and the exculpatory witness, David Isola, could not be located at that time on such short notice. Id., at 400, 408-11, 508 A.2d 1.

At the hearing on remand, the state conceded that it had had the Isola statement in its possession on October 20, 1981, and that it had not disclosed that statement to the defendant until midtrial in October, 1983. During that hearing, the court rejected the state's claim that evidence should be heard that Isola's statement of October 20, 1981, was a "total fabrication" given to create the impression that Isola was helping the Wallingford police in order to obtain his own release on a promise to appear on a relatively minor charge for which he had just been arrested. The remand court's memorandum states: "The state also made an offer of proof that Randy Isola, George Hodge and Gregory Hodge were all available and prepared to testify that they were with David Isola at the time in question and that the incident involving a man in a car in Three Fields, as described in the Isola statement, did not occur." The state also argued that the remand court should not make its findings of fact and conclusions of law based on the contents of the Isola statement but that it should permit further evidence which would show that, even if David Isola had been located, the alleged exculpatory evidence would either never have been testified to at trial, or if Isola had so testified, he would not have been believed because of the contrary testimony of Randy Isola, George Hodge and Gregory Hodge. The defendant, on the other hand, objected to going beyond the contents of the statement itself.

The remand court agreed with the defendant and ruled that because the issue before it "was whether the state had suppressed Brady material that was favorable and material to the defendant, that the court was required to accept the alleged Brady material in the form in which it existed and was not delivered to the defendant, and to proceed on the assumption that the precise contents of the Isola statement would have been testified to before the trial jury if the defendant had been aware of the statement." The court made its findings of fact and conclusions of law "[based] on that assumption." ⁷

On remand, the court determined that the victim had had "ample opportunity" to observe her assailant, that the victim had "positively identified" the defendant as her assailant on a videotaped lineup, that she had identified a photograph of the defendant "as resembling her assailant," that her description of her assailant "generally matched the defendant" and that she had made a "firm in-court identification" of the defendant as her assailant. The court also determined that although the defendant resided in Clinton, his car had been seen parked "in the immediate area of the assault at about the time of the assault," that "[t]he defendant's fingerprints were found on the [victim's] bicycle in the place where the assailant grabbed the bicycle" and that "seminal stains on the victim's clothes contained a substance that was consistent with the defendant's blood type and the fact that he was a secretor." It further found that "[t]he evidence contained in the Isola statement was that a man, not the defendant, whose description was similar to that of the assailant in some respects and dissimilar in others, was seen seated in a car which was not similar to the defendant's, in a field approximately one hour after the assault, and that the man appeared nervous and upset and drove off hurriedly when confronted." In that regard, it found also that the field mentioned in the Isola statement, where the car referred to in that statement was "seen," was approximately one mile from the scene of the assault. It then found that if the evidence set forth in the Isola statement had been presented to the jury, it would not have created a reasonable doubt in the minds of the jury as to the guilt of the defendant.

The court's conclusions of law were: that the failure of the state to turn over the Isola statement to the defendant was not of "sufficient significance" so as to result in a denial of his right to a fair trial; that, had it been disclosed, there was not a reasonable probability that the result of the trial would have been different; and that the statement would not have tended to lead the jury to entertain a reasonable doubt about the defendant's guilt. Moreover, the court also concluded that the Isola statement was not favorable and material to the defendant and that, therefore, the state had not suppressed Brady material that was favorable and material to the defendant. We agree with the factual and legal determinations of the court on remand and conclude, therefore, that the trial court, Mulvey, J., did not err on this issue as claimed.

In Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. at 1196, the United States Supreme Court stated that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Later, in Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2567-68, 33 L.Ed.2d 706, reh. denied, 409 U.S. 897, 93 S.Ct. 87, 34 L.Ed.2d 155 (1972), the court stated: "[t]he heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence." See State v. Green, 194 Conn. 258, 263, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L.Ed.2d 969 (1985). Impeachment evidence as well as exculpatory evidence falls within Brady's definition of evidence favorable to an accused. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. at 1196; United States v....