State v. Reid

• Citation: 254 Conn. 540,757 A.2d 482
• Decision Date: 05 September 2000
• Docket Number: (SC 15904)
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. MARK REID

254 Conn. 540

757 A.2d 482

STATE OF CONNECTICUT v. MARK REID

(SC 15904)

Supreme Court of Connecticut.

Argued April 26, 2000.

Officially released September 5, 2000.

McDonald, C. J., and Borden, Palmer, Sullivan and Vertefeuille, Js. Fiona Greaves, with whom were Charles D. Ray and, on the brief, Peter W. Hull, for the appellant (defendant).

Robert M. Spector, deputy assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Vicki Melchiorre, senior assistant state's attorney, for the appellee (state).

Opinion

MCDONALD, C. J.

After a jury trial, the defendant, Mark Reid, was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1)¹ and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A),² and the trial court rendered judgment in accordance with the verdict. The defendant appealed from the judgment to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

On appeal, the defendant claims that the trial court improperly: (1) admitted expert testimony relating to microscopic hair analysis; (2) denied the defendant's motion to suppress the victim's out-of-court identification of him in a photographic array; and (3) marshaled the evidence at the close of the trial. We reject each of the defendant's claims, and accordingly, affirm the judgment.

The jury reasonably could have found the following facts. In the early morning hours of November 8, 1996, the victim walked from a bar in East Hartford to her home, which was also in East Hartford. While the victim was walking along Burnside Avenue, the defendant emerged from a path leading out of Martin Park and, after asking the victim for a light, grabbed her by the left wrist. The defendant pushed a sharp object into the victim's side and forced her approximately seven feet down the path into Martin Park. A struggle ensued between the victim and the defendant, and they both fell to the ground. The defendant put his hands around the victim's neck to quiet her screams and threatened to kill her. The defendant then carried the victim further along the path into Martin Park, and pushed her to the ground. The defendant straddled the victim and placed his knees upon her arms. The defendant began to choke the victim, with one hand on her nose and mouth and the other around her throat, and again threatened to kill her. The victim began to lose consciousness and, out of fear for her life, decided to stop struggling. The defendant then forced the victim to perform fellatio. He then placed a condom on his penis, turned the victim onto her front side and forced her to engage in vaginal intercourse. The defendant then pulled the victim to her feet and held her by her arm. After the victim pulled up and buttoned her pants, the defendant again threatened to kill her. The defendant continued to hold the victim by the arm, and in this manner forced her along the path toward Burnside Avenue. The defendant let go of the victim, and she walked to her home along Burnside Avenue. When the victim arrived home, she called a friend and told the friend that she had been raped. The victim then hung up and called the police. Officer Brian Fox of the East Hartford police department was dispatched to the home of the victim, and spoke with her about the assault. Fox took the victim to Manchester Hospital, where he secured as evidence her clothes and a screwdriver that she surreptitiously had picked up at the scene of the attack. The victim became increasingly upset, and elected not to be examined at the hospital. Fox then took the victim home. Because the victim was so upset, Fox did not take a statement from her. Fox did, however, obtain from the victim a description of the attacker, which included the fact that he had freckles across his nose and under his eyes.

On November 12, 1996, at the request of Officer Francis Malozzi of the East Hartford police department, the victim went to the East Hartford police station to give a statement concerning the attack. After the victim gave a statement about the attack, Malozzi showed her a photographic array containing photographs of eight persons that could have fit the description of her attacker. The victim identified the defendant as her attacker, and began to shake and cry. Later that afternoon, Malozzi searched the area where the attack took place and recovered an earring belonging to the victim. Approximately one week later, the defendant was arrested. Additional facts and procedural history will be provided as needed.

I

The defendant makes two claims with respect to the admission into evidence of certain microscopic hair analysis. First, he contends that such evidence was inadmissible per se because it is unreliable and inherently subjective, and second, he argues that, even if not per se inadmissible, the evidence was inadmissible in this case. We disagree.

A

The following additional facts are relevant to the defendant's first claim. After commencement of the trial, the state sought to introduce the testimony of Kiti Settachatgul, lead criminologist at the Connecticut state police forensic laboratory, concerning microscopic hair analysis. The defendant moved to exclude all evidence regarding hair analysis in this matter and, pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed.2d 645 (1998), requested a hearing as to the reliability of microscopic hair analysis. The trial court held a three day hearing, after which it denied the defendant's motion and admitted the evidence.

Before the jury, Settachatgul testified that he had examined the clothes that the victim was wearing on the night of the attack and recovered three pubic hairs that did not come from the victim. Then, through a process known as microscopic hair analysis, Settachatgul compared these unknown hairs to hairs provided by the defendant. Settachatgul found that the characteristics of the known hairs from the defendant were similar to the characteristics of those recovered from the victim's clothing.

The defendant argues that microscopic hair analysis should be excluded per se under the test adopted by this court in State v. Porter, supra, 241 Conn. 57, regarding the admission of scientific evidence. In Porter, this court followed the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.2d 469 (1993), and held that scientific evidence should be subjected to a flexible test, with differing factors that are applied on a case-by-case basis, to determine the reliability of the scientific evidence. See State v. Porter, supra, 84-86. Porter explicitly stated that the flexible Daubert approach was a better approach than the test of general acceptance in the scientific community, which was established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

In Porter, we said that "[a]s science and technology have advanced and become increasingly prevalent in our society, the number of cases, both civil and criminal, in which scientific testimony plays a role has also grown." State v. Porter, supra, 241 Conn. 92. We explicitly acknowledged, however, that "some scientific principles have become so well established that an explicit Daubert analysis is not necessary for admission of evidence thereunder.... Evidence derived from such principles would clearly withstand a Daubert analysis, and thus may be admitted simply on a showing of relevance." Id., 85 n.30. As an example of such a principle, this court cited a Montana court's conclusion that a Daubert analysis is not necessary for "ordinary fingerprint identification evidence to be admissible." Id., citing State v. Cline, 275 Mont. 46, 55, 909 P.2d 1171 (1996).

Although this court in Porter explicitly adopted the Daubert test to determine the admissibility of scientific evidence; see State v. Porter, supra, 241 Conn. 68; we did not explicitly overrule Connecticut precedent regarding the evidence to which such a test should apply. Prior to Porter, this court had recognized that the Frye test for admissibility should not apply to all expert testimony, but only to that which involves "innovative scientific techniques...." State v. Borelli, 227 Conn. 153, 163, 629 A.2d 1105 (1993); State v. Hasan, 205 Conn. 485, 489, 534 A.2d 877 (1987). In Porter we recognized that Daubert's vagueness as to how and when to apply the factors of the test was necessary. State v. Porter, supra, 78. In order to maintain flexibility in applying the test, we did not define what constitutes "scientific evidence." Id., 78-79. Accordingly, we must examine the expert testimony at issue in the present case to determine whether it is the type of evidence contemplated by Porter.

In State v. Hasan, supra, 205 Conn. 490, we upheld the admission of the testimony of a podiatrist as to the likelihood that a pair of sneakers would fit the defendant's feet. We concluded that the podiatrist's testimony was not "scientific evidence" subject to the Frye test because the podiatrist merely compared the footwear to the defendant's feet. Id., 491. Accordingly, the "jury [was] in a position to weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the expert's assertions based on his special skill or knowledge." Id. The testimony was not based on "obscure scientific theories"; id., 491; that had the "potential to mislead lay jurors awed by an aura of mystic infallibility surrounding scientific techniques, experts and the fancy devices employed." (Internal quotation marks omitted.) Id., 490. Rather, the podiatrist's testimony concerned a method, the understanding of which "is accessible to the jury"; id., 491; and the value of the "expertise lay in its assistance to the jury in viewing and...