Probably the most interesting criminal law issue to emerge from the last state Supreme Court term was the development of the law on eyewitness identification.
In State v. Guilbert, 306 Conn. 218, the Court tackled the issue of whether a defendant is entitled to present expert testimony on the reliability of an eyewitness identification. In State v. Kemp, 199 Conn. 473 (1986) and again in State v. McClendon, 248 Conn. 572 (1999), the Court had previously concluded that expert testimony on the reliability of an eyewitness identification invaded the province of the jury.
In Guilbert, the Court expressly overruled its holdings in Kemp and McClendon. Significantly, the Court looked to scientific research in recognizing “the fallibility of eyewitness identification testimony.” The decision tracks some recent societal awareness on the issue. DNA evidence has led to the recent exoneration of several individuals whose convictions were based on identification evidence. And earlier this year, the legislature initiated an Eyewitness Identification Task Force to study the issue.
It is hopeful that the Court’s decision in Guilbert will have national influence. After all, our state has long held an important influence in the area of eyewitness identification law, given that the leading U.S. Supreme Court case on the admissibility of eyewitness testimony, Manson v. Brathwaite, 432 U.S. 98 (1977), originated out of Connecticut.
Another interesting eyewitness identification case was State v. Thompson, 305 Conn. 412, in which the Court held that a preponderance of the evidence standard applied for determining whether a defendant had “procured” the unavailability of an eyewitness under the forfeiture by wrongdoing rule. Under Section 8-6 of the Evidence Code, a statement made against a party is admissible if the party procured the unavailability of the witness.
In Thompson, an eyewitness had provided the police with a statement and a signed photographic array identifying the defendant. Two weeks after a pretrial proceeding, the witness was found dead. The state established, by a preponderance of the evidence, that the defendant had had the witness killed and, therefore, the forfeiture by wrongdoing rule applied, warranting admission of the witness’ statement and the signed photographic array.
Consciousness Of Guilt
On the topic of consciousness of guilt evidence, State v. Coccomo, 302 Conn. 664, is a must read. The defendant was a second-grade teacher who was involved in a horrific crash that killed three people. A jury found her guilty of manslaughter and driving under the influence, and she was sentenced to 12 years in prison. Four years later, a panel of three Appellate Court judges concluded that the defendant had been deprived of a fair trial by the improper admission of evidence that she had transferred her half-ownership of her home to her mother for one dollar after the accident. The state appealed and the Supreme Court issued a 4-3 decision reversing the Appellate Court’s decision and reinstating the defendant’s convictions.
The majority opinion presents a thorough analysis of the law on consciousness of guilt evidence in Connecticut before concluding that the evidence of the transfer of property from the defendant to her mother was not improper and was not overly prejudicial. An equally compelling dissenting opinion concludes that the admission of the evidence was improper.
The interesting anomaly that the case presents is that of the 10 appellate jurists who reviewed the conviction, six concluded that Coccomo was entitled to a new trial. Nonetheless, her convictions stand.
Fourth Amendment Cases
There were two significant Fourth Amendment cases decided last term, State v. Benton, 304 Conn. 838 and State v. Jackson, 304 Conn. 383. The first, Benton, was a Terry stop case. In Terry v. Ohio, 392 U.S. 1, the U. S. Supreme Court held that a police officer may stop and frisk an individual without probable cause to arrest if the officer has a reasonable articulable suspicion that the person has committed or is about to commit a crime and a reasonable belief that the person may be armed and presently dangerous.
In Benton, the defendant and two companions were riding bicycles in an area that was known for gang violence. Two uniformed police officers observed the defendant, noticed that his attire was consistent with membership in a local gang, observed the defendant make a gesture consistent with adjusting an unholstered handgun, and stepped onto the road. Upon making eye contact with the officers, the defendant uttered an expletive, veered his bicycle away from the officers, stood on his pedals and attempted to accelerate. The defendant’s companions reversed direction and rode away. The officers apprehended the defendant and discovered a loaded handgun in the defendant’s possession. The defendant was convicted of carrying a pistol without a permit and criminal possession of a pistol.
The Court agreed that the defendant’s mere veering off course would not have been sufficient to justify a Terry stop. However, the Court concluded that the additional facts of the defendant’s expletive utterance and the defendants’ companions’ flight were facts that, under the totality of circumstances, justified the stop.
The second search and seizure case was State v. Jackson, which holds that a person who unsuccessfully attempts to commit suicide has no reasonable expectation of privacy in the material items that they would have left behind. The defendant heinously murdered his ex-girlfriend. The next day, he checked into a hotel and jumped out the hotel window in an attempt to kill himself. However, he succeeded only in breaking both his legs and one of his arms.
Forensic testing on the defendant’s belt, which was found in the abandoned hotel room, and on his socks, which were found on the third floor roof, revealed the victim’s DNA profile. The defendant claimed that seizure of the belt and socks violated his Fourth Amendment rights. The Court disagreed, concluding that when the defendant jumped out the hotel window, he manifested an intent never to return to his room and, therefore, he had abandoned any expectation of privacy.
The Court also announced several important rules of which criminal law practitioners should be aware. In State v. Payne, 303 Conn. 538, the Court overruled a series of cases and held that there is no longer a presumption in Connecticut in favor of joinder of multiple informations for trial in a criminal case. In State v. Rose, 305 Conn. 594, the Court announced a rule under its supervisory authority that when a defendant is compelled to stand trial in identifiable prison attire, any resulting conviction is per se reversible.
Finally, State v. Altajair, 303 Conn. 304, is a decision that is likely to be cited with some frequency. The Court concluded that pictures on the defendant’s Facebook page satisfied a “minimal indicia of reliability” and were, therefore, admissible at her probation revocation hearing. The most interesting aspect of the decision is its informative discussion contained in a footnote, and throughout the text, on what Facebook is and how it works. •