State v. Williams ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE v. WILLIAMS—DISSENT
McDONALD, J., dissenting. In State v. Guilbert, 306
Conn. 218, 259–60, 49 A.3d 705 (2012), we explained
that the ‘‘identification of a person who is well-known
to the eyewitness generally does not give rise to the
same risk of misidentification as does the identification
of a person who is not well-known to the eyewitness.’’
(Emphasis added.) In that case, we concluded that four
of the five eyewitnesses ‘‘were familiar enough with
the defendant that the risk of misidentification was
small’’ so as to render the trial court’s decision to pre-
clude expert testimony on misidentification not an
abuse of discretion as to those witnesses. (Emphasis
added.) Id., 261. I agree with the majority that this court
should not prescribe a bright line rule regarding a spe-
cific number of encounters or the nature of the expo-
sure that an eyewitness must have with the person
whom she identifies as the perpetrator to constitute
the requisite familiarity. Indeed, it would be difficult to
know precisely where to draw such a line. See Haliym
v. Mitchell, 492 F.3d 680, 706 (6th Cir. 2007) (‘‘[w]it-
nesses are very likely to recognize under any circum-
stance the people in their lives with whom they are
most familiar, and any prior acquaintance with another
person substantially increases the likelihood of an accu-
rate identification’’). It does seem to me, however, that
the record must clearly demonstrate that the eyewitness
has sufficient familiarity as to give us confidence that
the inherent dangers of eyewitness identification are
unlikely to be present. No such record exists in the
present case.
The trial court made no finding regarding the extent
to which Marlyn DeJesus, the sole eyewitness to the
robbery of the Overstock Outlet store (store), was famil-
iar with the defendant, Stanley Williams. In fact, there
is no mention at all of this factor in the court’s oral ruling
precluding the defendant’s expert on the accuracy of
eyewitness identification. The trial court, of course,
lacked the benefit of our decision in Guilbert, as well
as Justice Palmer’s concurrence in State v. Outing, 298
Conn. 34, 101, 3 A.3d 1 (2010), cert. denied, 562 U.S.
1225, 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011), foreshad-
owing the holding in Guilbert.
Nor is the record sufficiently clear as to permit this
court to make such an assessment as a matter of law.
The record reflects that DeJesus had been working at
the store for only five months at the time the robbery
occurred. DeJesus testified that, in those preceding five
months, the perpetrator had come into the store ‘‘a
couple times’’ before the robbery, that she ‘‘[could not]
really tell you how many times,’’ and that she could
only confirm that she had seen him more than once.1
She later described him as ‘‘a regular customer
[be]cause [she had] seen him before.’’ With respect to
those previous visits, DeJesus could not recall what the
perpetrator had been wearing. Because DeJesus never
identified the defendant by name in either her statement
to the police or her testimony, it must be assumed that
she did not know his name. Other than indicating that
she had greeted him as he entered the store on the day
of the robbery, as she did with all customers, DeJesus
did not indicate that she and the perpetrator had ever
had any face-to-face interactions, of any nature or dura-
tion, prior to the robbery. Nor is there any indication in
the record regarding any of the attendant circumstances
surrounding DeJesus’ prior interactions with the perpe-
trator. Moreover, there is nothing in the record regard-
ing how long prior to the robbery, over the preceding
five months of her employment, DeJesus last encoun-
tered the perpetrator. The facts that are in the record are
simply too slim, indefinite, and generalized to support a
conclusion, as a matter of law, that DeJesus was ‘‘so
familiar with the defendant that the risk of misidentifi-
cation was insignificant.’’ State v. Guilbert, supra, 306
Conn. 262; see also State v. Outing, supra, 298 Conn.
101 n.8 (Palmer, J., concurring) (‘‘[inherent] dangers
[of eyewitness identifications] are generally limited to
eyewitness identifications of strangers or persons with
whom the eyewitness is not very familiar’’ [empha-
sis added]).
The majority acknowledges but glosses over the defi-
ciencies in the record in the present case, concluding
that the facts here are similar to those in other cases
in which eyewitnesses have been deemed sufficiently
familiar with the perpetrator. I respectfully disagree.
In Guilbert, of the four eyewitnesses deemed to be
sufficiently familiar with the defendant, the one who
knew him least well ‘‘had seen the defendant as a regular
customer in the donut shop where she had worked for
more than one and one-half years before the shooting
and knew him by name.’’ State v. Guilbert, supra, 306
Conn. 261 n.40. With respect to the other three eyewit-
nesses, one had known the defendant ‘‘ ‘for a while’ ’’
and had ‘‘ ‘had words’ ’’ with him ‘‘ ‘a couple of months’ ’’
before the shooting, one had known the defendant for
approximately ten years and knew him by name, and
one previously had lived with the defendant for ‘‘ ‘quite
some time . . . .’ ’’ Id.
In the other cases cited by the majority in which
there is any basis from which we can glean the nature
and extent of the eyewitnesses’ familiarity with the
alleged perpetrators,2 it clearly exceeds the minimal
contact in the present case. See Parker v. State, 333
Ark. 137, 147, 968 S.W.2d 592 (1998) (eyewitness had
known defendant ‘‘for about ten years’’); Hager v.
United States, 856 A.2d 1143, 1145 (D.C. App.) (The
eyewitness had seen the defendant ‘‘for well over a year
. . . on a daily basis outside [the victim’s] apartment
building but did not know his name. She exchanged
greetings with him and heard him converse with other
people.’’), amended on reh., 861 A.2d 601 (D.C. App.
2004), cert. denied, 547 U.S. 1035, 126 S. Ct. 1609, 164
L. Ed. 2d 325 (2006); State v. Trotter, 280 Kan. 800,
807–808, 127 P.3d 972 (2006) (child eyewitness knew
defendant as friend of his father and had seen defendant
in their home); Commonwealth v. Stoddard, 38 Mass.
App. 45, 48, 644 N.E.2d 234 (1995) (‘‘[T]here may be
cases in which the parties are so well known to each
other or so closely related that under sufficient lighting
and with appropriate physical proximity, the identifica-
tion by the victim is either true or the victim is lying.
. . . That is the case here. The victim knew the defen-
dant as a regular customer of the station and had
encountered him numerous times over a year and one-
half.’’ [Citation omitted; internal quotation marks omit-
ted.]); People v. Abney, 13 N.Y.3d 251, 265, 918 N.E.2d
486, 889 N.Y.S.2d 890 (2009) (eyewitness ‘‘had seen and
heard [the] defendant in the neighborhood regularly
over a period of six months before the robbery’’); John-
son v. State, 85 Wis. 2d 22, 25–26, 270 N.W.2d 153 (1978)
(one eyewitness had seen defendant ‘‘on many previous
occasions, although she didn’t know him personally’’;
another eyewitness had previously seen defendant at
his family home and at family run business and had
been introduced to defendant by eyewitness’ uncle; and
third eyewitness did not know defendant personally but
had seen him on ‘‘more than’’ one occasion and had
observed him sufficiently to testify regarding his knowl-
edge of defendant’s character and behavior, stating that
defendant ‘‘would push people around if he could’’);
see also Saenz v. Kansas, Docket No. CIV. A. 02-3119-
CM, 2003 WL 22102140, *7 (D. Kan. July 16, 2003) (eye-
witness had seen defendant ‘‘at least ten times before
th[e] night [of the crime]’’).3
Notably, several of the cases cited by the majority
rely heavily on corroborative evidence as a basis to
deem eyewitness testimony sufficiently reliable, or did
not turn on concerns of misidentification. See, e.g., Peo-
ple v. Abney, supra, 13 N.Y.S.3d 269 (not abuse of discre-
tion to exclude expert testimony on reliability of
eyewitness identifications because this was ‘‘not a case
[that] turn[ed] on the accuracy of eyewitness identifica-
tions [where] there [was] little or no corroborating evi-
dence connecting the defendant to the crime’’ [internal
quotation marks omitted]); People v. Perez, 85 A.D.
3d 630, 925 N.Y.S.2d 501 (‘‘The case did not turn on the
accuracy of an eyewitness identification, and there was
extensive corroborating evidence . . . . One of the
two identifying witnesses was acquainted with [the]
defendant. As to this witness, the issue was credibility,
not mistaken identity. Furthermore, there was addi-
tional corroborating evidence . . . .’’ [Citations omit-
ted.]), appeal denied, 17 N.Y.S.3d 955, 959 N.E.2d 1030,
936 N.Y.S.2d 81 (2011); United States v. Wiley, 545 Fed.
Appx. 598, 599 (9th Cir. 2013) (noting that eyewitness
had seen defendant ‘‘several times before,’’ eyewitness
had been subject to cross-examination, court gave com-
prehensive instruction on eyewitness testimony, and
defendant’s coconspirator had identified defendant in
surveillance video of robbery). In Guilbert, we
expressly rejected corroborative evidence of the defen-
dant’s guilt as relevant to the trial court’s exercise of
discretion in admitting expert testimony on this matter.
State v. Guilbert, supra, 306 Conn. 263.
The majority contends that I improperly ‘‘presume
from the lack of definitive evidence as to the specifics
of the defendant’s previous visits to the . . . store that
those visits were minimal in number and that he and
DeJesus had never spoken or otherwise interacted prior
to the day of the robbery.’’ See footnote 17 of the major-
ity opinion. I make no such presumption. Rather, I sim-
ply conclude that, because there is no such evidence,
we cannot infer that there were numerous visits or such
interactions. Even reading a record to support a trial
court’s ruling does not permit us to draw inferences
unsupported by any evidence. The record unambigu-
ously establishes that DeJesus had seen the perpetrator
more than once, but that she was unable to identify
how many more times. The only other specific informa-
tion she gave was consistent with that statement—’’a
couple times.’’ Although DeJesus’ testimony leaves
open the possibility that she could have seen him on
more than two occasions prior to the robbery, it would
be pure speculation to conclude that she had. The
majority’s emphasis on DeJesus’ single reference to the
perpetrator as a ‘‘regular customer’’ takes that descrip-
tion entirely out of context, ignoring that this statement
followed her answers to the preceding questions and
that she explained exactly what she meant: he was
‘‘a regular customer cause I have seen him before.’’4
(Emphasis added.) Thus, this description cannot rea-
sonably be construed to expand her prior, specific testi-
mony. In my view, this simply is not enough to render
the risk of misidentification slim.
The majority also contends that the omissions in the
record inure to the detriment of the defendant because
he had the burden of establishing that DeJesus was not
sufficiently familiar with the perpetrator. I disagree.
The state moved to preclude the defendant’s expert
on eyewitness identification; therefore, as the moving
party, it had the burden of proof. Cf. Menna v. Jaiman,
80 Conn. App. 131, 138 n.4, 832 A.2d 1219 (2003) (‘‘[t]he
party who files the motion in limine has the burden of
demonstrating that the evidence is inadmissible on any
relevant ground’’); see also State v. Binet, 192 Conn. 618,
624, 473 A.2d 1200 (1984) (defendant failed to sustain
burden on his motion in limine). Indeed, even if the
defendant had an initial burden of demonstrating that
the expert’s testimony on eyewitness identification
would be useful and relevant to the jury because the
circumstances of the identification implicated one or
more of the concerns identified in Guilbert, once the
defendant met this burden, the burden should shift to
the state to prove that the risk of misidentification is
not great because of the eyewitness’ familiarity with
the defendant. See State v. Guilbert, supra, 306 Conn.
259–63 (examining state’s claim that eyewitnesses knew
defendant and therefore risk of misidentification was
less likely).
I note that an amicus brief was submitted in Guilbert,
in which studies were presented in support of the propo-
sition that there is a danger of misidentification even
when the eyewitness has some familiarity with the per-
son who is identified. Id., 261 n.41. The studies reflected
that eyewitnesses who had interacted with strangers
for longer periods were more prone to misidentification
when presented with a photographic array. Id. Although
we noted the absence of any reason to question the
scientific validity of these studies, we concluded that
they had little relevance in the case before us because
the defendant was well-known before the crimes to all
but one of the eyewitnesses, and all of those eyewit-
nesses had identified the defendant as the shooter
before being presented with a photographic array. Id.
In light of the outcome in the present case, perhaps
this scientific evidence deserves further scrutiny.
On the basis of the record in this case, I would con-
clude that the trial court, having made no findings of
fact regarding the nature and extent of DeJesus’ famil-
iarity with the perpetrator, abused its discretion in pre-
cluding the defendant from introducing expert
testimony on the risks of misidentification. Indeed, sev-
eral of the factors we had identified in Guilbert clearly
are implicated in the present case—the eyewitness’ con-
fidence in her identification; the eyewitness’ focus on
a weapon; the eyewitness’ high stress at the time of
observation; and the perpetrator’s wearing of a hat.5
See id., 237–39; id., 239 n.20. To the extent that the
majority relies on the fact that DeJesus stated that she
recognized the perpetrator when he entered the store,
before he threatened her with the knife, her testimony
also unambiguously indicates that she was distracted
at that time. DeJesus acknowledged that she had been
looking at her laptop computer before and after the
perpetrator entered the store and that she had not paid
attention to him after he walked past her. She further
acknowledged that the videotape of the incident
reflected that her hand continued to navigate the laptop
touch pad before, during, and after the perpetrator
entered the store. She also indicated that, when the
perpetrator came to the cash register, she did not look
at his face until she had completed ringing up his items,
at which time he drew out the knife.
I would further conclude that, under these circum-
stances, the trial court’s decision to preclude expert
testimony was harmful error. See id., 265 (citing stan-
dard for reversal based on improper evidentiary ruling
of nonconstitutional nature). The state’s case in the
store robbery turned on the jury crediting DeJesus’
identification. Indeed, because the eyewitness to the
earlier liquor store robbery could not identify the defen-
dant as the perpetrator, DeJesus’ identification had par-
amount significance. As we explained in Guilbert, ‘‘the
methods traditionally employed for alerting juries to
the fallibility of eyewitness identifications—cross-
examination, closing argument and generalized jury
instructions on the subject—frequently are not ade-
quate to inform them of the factors affecting the reliabil-
ity of such identifications. . . . [A]lthough cross-
examination may expose the existence of factors that
undermine the accuracy of eyewitness identifications,
it cannot effectively educate the jury about the import
of these factors. . . . Defense counsel’s closing argu-
ment to the jury that an eyewitness identification is
unreliable also is an inadequate substitute for expert
testimony. In the absence of evidentiary support, such
an argument is likely to be viewed as little more than
partisan rhetoric.’’ (Citation omitted; emphasis omitted;
footnotes omitted.) Id., 243–44.
Accordingly, I respectfully dissent.
1
In her signed statement to the police, DeJesus simply informed them
that she ‘‘ha[d] seen [him] in the store before.’’
2
Several cases simply state in conclusory fashion that an eyewitness
‘‘knew’’ the defendant. See, e.g., People v. Pacheco, 38 A.D. 3d 686, 688,
832 N.Y.S.2d 248 (‘‘identifying witness knew the defendant for months’’),
appeal denied, 9 N.Y.3d 849, 872 N.E.2d 888, 840 N.Y.S.2d 775 (2007).
3
The majority cites State v. Saenz, 271 Kan. 339, 354, 22 P.3d 151 (2001),
which does not indicate the extent of the interaction between the defendant
and the eyewitness. The federal habeas court decision I have cited is related
to this case.
4
To put this phrase in its proper context, I note the following exchange
that ensued when defense counsel cross-examined DeJesus with respect to
the events on the day of the robbery:
‘‘[Defense Counsel]: Were you thinking to yourself, I really want to get a
good look at this man because I may have to identify him later today?
‘‘[DeJesus]: No.
‘‘[Defense Counsel]: He was just another customer as he was walking in,
right, as far as you knew?
‘‘[DeJesus]: Yes. He was a regular customer cause I have seen him before.’’
5
The trial court found that the defendant had not established that the
eyewitness identification was cross-racial, only that the defendant is black
and that DeJesus has a Hispanic last name. I do not read the majority’s
opinion to necessarily compel the same result if a defendant has established
this fact.